Hollow Victory of Anti-Bully Law

The recent controversy over the passage of an anti-bully law in Tennessee provides more evidence that a national solution is the only viable way to combat the epidemic of workplace bullying in the United States.

The Wall Street Journal recently reported upon the lack of enthusiasm for a new law passed by Tennessee’s legislature last May to protect public sector employees from workplace abuse. The upshot of the story was that the law actually provides little or no protection to public sector workers who are targets of bullying and workplace abuse.

Tennessee’s  “Healthy Workplace Act” calls for an advisory commission to create a model anti-bully policy for public sector workers by March 1, 2015.  The law states that if a public sector employer adopts the model policy or an equivalent anti-bully policy  “then the employer shall be immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish.” Thus, if administrators  simply adopt a policy –  even if it is never enforced –  they will receive legal immunity from potential lawsuits.

Not only does the Tennessee law do little to protect workers, it potentially could make things worse by preventing targets of workplace abuse from seeking damages for emotional distress while removing what many consider to be the only real  incentive for employers to maintain a healthy workplace – the threat of a lawsuit.

And it is not clear how far the employer’s indemnity will extend.   The law includes a very general definition of abusive conduct that includes “repeated verbal abuse,” “verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature” and  “the sabotage or undermining of an employee’s work performance in the workplace.”   It remains to be seen whether employers will attempt to invoke this language to  protect themselves against damages for emotional distress arising under other state laws, including  assault, stalking or even sex and race discrimination laws.

The WBI claims the Tennessee law is a victory in the sense that a state finally has recognized the problem of workplace bullying, at least with respect to public sector employees.

Tennessee’s law is a watered down version of the so called Healthy Workplace Bill (HWB), which the WBI has touted in its national campaign to enact bullying laws on a state by state basis.   The HWB has been considered in 26 states and two territories since 2002 and Tennessee is the first jurisdiction to pass a version of  the HWB.  The governor of Puerto Rico earlier this month vetoed a workplace bullying bill that was passed by both chambers of legislature there.

Tennessee’s law demonstrates the inherent problem with the state-by-state approach.  Even well-meaning states apparently cannot overcome the massive resistance of state and national business interests to anti-bully legislation. At best, the Tennessee law is a general policy statement with no teeth.

Meanwhile, the United States falls farther and father behind other industrialized nations.

In Europe, many  countries have laws addressing harassment at work and in  countries that have no specific legislation “there is  usually a more general law on safety and health or equal treatment that covers the different aspects of work, both physical and psychosocial work environment.”  See  European Agency for Safety and Health at Work, European Risk Observation Report (2009).

A 2007  framework agreement on harassment and violence at work by the European social partners states that workplace harassment occurs when one or more workers or managers are repeatedly and deliberately abused, threatened and/or humiliated in circumstances related to work. The agreement was signed  by the European Trade Union Confederation (ETUC/CES), the Confederation of European Business (BUSINESSEUROPE), the European Association of Craft Small and Medium-sized Enterprises (UEAPME) as well as the European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP).

The International Labour Organisation (ILO) states that violence at work includes non-physical or psychological violence. According to the ILO, violence may also consist of repeated actions which by themselves may be relatively minor, but which can cumulatively come to constitute serious forms of violence such as sexual harassment, bullying or mobbing.

The World Health Organisation (WHO) defines workplace violence as ‘intentional use of physical force or power, threatened or actual, against oneself, another person or against a group or community that either results in, or has a high likelihood of resulting in, injury, death, psychological harm, wrong development or deprivation.  The WHO says workplace violence  includes acts arising out of power relations, including threats and intimidation.

How long must workers in the United States wait … and suffer?


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