When Is a Law Too Business Friendly?
Many of the victims of workplace bullying that I come in contact with are devastated by the struggle to overcome anger and feelings of powerlessness. They want to take action. They want to protect others. They want a law!
Proposed legislation like the Healthy Workplace Bill (HWB) seems made to order. But, Patricia G. Barnes argues that the bill is “unnecessarily restrictive” and “would require American workers who are targets of workplace bullying to jump high hurdles that do not exist for workers in other countries. There is no valid reason to set the bar lower for American workers.”
Barnes’ bio is impressive and lists her as an appellate judge, a licensed attorney (admitted in PA only), a Westlaw Round Table Group “Employee Relations” expert witness, and a legal author with experience in both domestic violence and employment law. She understands workplace bullying and she understands law.
“One idea might be federal legislation to amend Title VII, the Civil Rights Act of 1964, to permit any worker to sue if subjected to a hostile workplace environment,” she writes. “Another idea is to approach the problem as an important public health issue – which it is – and adopt health and safety regulations to protect employees on that basis. Finally, one might think local – push cities and towns to adopt legislation to protect employees from workplace abuse.”
Or, the Healthy Workplace Bill could be amended into something stronger. The passionate volunteers fighting for the HWB can add (or delete) language in the bill that places limitations on abused and bullied workers. Here is Barnes’ critique of the HWB:
“The Healthy Workplace Bill”
[by Patricia G. Barnes] This proposed bill (see below) was drafted by Professor David C. Yamada of Suffolk University Law School in Boston, MA, and is supported by the Workplace Bullying Institute at a web site called, The Healthy Workplace Bill.
Without detracting from the fine work of Prof. Yamada and the WBI, it is unfortunate that the Healthy Workplace Bill is somewhat anemic compared to legislation adopted elsewhere on workplace bullying.
For one thing, the proposed Healthy Workplace Bill would require a victim to provide evidence of malicious intent to bully. Malice is defined in the proposed bill as “the desire to cause pain, injury, or distress to another.” Part of the “art” of workplace bullying is subtlety. The target may be the victim of a thousand pin pricks that add up to a mortal wound. The bully acts covertly and uses manipulation to debilitate the target. Bullies are notorious for showing one face to the target and another to his/her supervisor. It would be very difficult to prove malice in these situations and one can only wonder why this is a requirement in the proposed Healthy Workplace Bill.
The proposed bill also would require the target to provide proof of tangible psychological or physical harm to the plaintiff. This would pose a burden for targets who don’t have health care coverage or the funds or the cultural disposition to see a therapist. How can they prove tangible psychological harm? Also, overwhelming research shows that bullying causes stress that may contribute to physical harm that only becomes apparent many years later – such as heart disease. This should be taken into account.
Finally, the U.S. Supreme Court says a plaintiff in a Title VII civil rights harassment case does not have to prove concrete psychological harm. “Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.” Harris v. Forklift System, 510 U.S. 17 (1993).
According to Katherine Lippel, an international authority on workplace abuse, laws in other countries do not have the above restrictions, which would make it far more difficult for a plaintiff to prevail in litigation. Ms. Lippel is the Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada. Here’s what Ms. Lippel has to say about The Healthy Workplace Bill: “It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill.”
Furthermore, the wording of Section 7(b) limits damages for emotional distress to $25,000 (with no punitive damages) in cases where an employer is found to be liable but the target does not suffer an adverse employment action such as termination. This affects targets of bullying who are not demoted or fired. But why? There is at least one highly publicized case where an alleged target of workplace bullying committed suicide because he thought that he was going to be demoted or fired. This cap is so low that it could fail to adequately compensate a target of severe bullying and would not serve as a useful deterrent to employers to halt workplace bullying.
Possibly the limiting language of the proposed Healthy Workplace Bill reflects a concern by its drafters that employers will fight workplace anti-bullying legislation unless it is sufficiently weak. My feeling is that American workers deserve at least the same level of protection as other workers around the world.
[This article excerpt is reprinted with permission from the blog: When The Abuser Goes To Work: a legal blog on workplace bullying and abuse.]