The proposed Healthy Workplace Bill (HWB) is touted as model legislation to combat workplace bullying in the United States but is it as healthy as it should be for American workers?
No, says an international expert writing in a special issue of Comparative Labor Law & Policy Journal entitled, The Law of Workplace Bullying: An International Overview, Volume 32, Number 1, Fall 2010.
“It is of note that efforts to have legislation adopted in the Unites States seem to raise the bar far higher than would be acceptable in any of the other countries studied here,” says Professor Katherine Lippel, the editor of the issue and Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada,
The HWB was drafted by Professor David Yamada of Suffolk University, Boston, MA, founder of the New Workplace Institute, and is supported by the Workplace Bullying Institute founded by Gary and Ruth Namie.
Ms. Lippel said the HWB contains restrictive requirements not found in other such laws around the world. Specifically, she cites its requirement that the Plaintiff show malicious intent to bully and provide evidence that he or she suffered tangible psychological or physical harm.
Here’s what Ms. Lippel has to say about the proposed requirement of proof of malicious intent:
“The requirement of malicious intention is of particular concern, and is not a requirement in the other legislation studied in this issue … Most legislation does not require evidence of the intention of the perpetrator of harassment (see for instance the interpretation and application of the legislation in France and Québec, and the Code of practice in Spain), and while malicious intent may lead to an increased award in Germany, evidence of intent is not required in the application of remedies provided for either in contract or tort liability contexts.”
It should also be noted that proof of malice is not a requirement for “hostile workplace” claims under Title VII of the Civil Rights Act, which protects victims who are discriminated on the basis of race, sex, national original, etc. They need prove malice only if they are seeking the additional remedy of punitive damages.
Here’s what Ms. Lippel has to say about the proposed requirement of proof of tangible harm:
“Similarly, the proposed Healthy Worker Bill imposes an evidentiary requirement that has been critiqued as being “an over-high standard of severity,”… requiring evidence of tangible harm to the plaintiff … 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.”
It should also be noted here that proving tangible psychological or physical harm is not required by federal discrimination laws for other victims of a hostile workplace environment. In fact, the requirement was expressly rejected by the U.S. Supreme Court in a 1993 sexual harassment case. In Harris v. Forklift Systems., the U. S. Supreme Court said the protection of federal law comes into play before the harassing conduct leads to a nervous breakdown. (See Harris v. Forklift Sys., 510 U.S. 17 (1993))
The Supreme Court also said: “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 … there is no need for it also to be psychologically injurious.”
Furthermore, the requirement to prove psychological harm would be a burden for targets who don’t have health care coverage, the funds to see a therapist or the cultural disposition to seek psychiatric care. According to the Office of Minority Health, U.S. Dept. of Health and Human Services, 19.5 percent of African-Americans in comparison to 10.4 percent of non-Hispanic whites were uninsured in 2007.
Overwhelming research shows that bullying causes stress that may contribute to physical harm that only becomes apparent many years later – such as heart disease. Shouldn’t this be taken into account?
Ms. Lippel prefaces her remarks with the admonition that, “The actual content of the legislation on workplace bullying, if there is to be legislation, requires reflection.”
There is one other striking problem with the HWB that is not discussed in the special issue. The HWB places a seemingly arbitrary cap on damages for targets of bullying who did not experience an adverse employment action, such as demotion or dismissal. The cap on emotional distress damages is $25,000 and targets are prohibited from seeking punitive damages. This cap is so low that it is unlikely that the HWB would serve as a deterrent to employers. And, in a worst case scenario, the family of target driven to suicide by bullying would be able recover barely enough to pay for a decent funeral – all because the target was not demoted or fired. In short, the only damages available to a target of workplace bullying in this situation would be compensatory, i.e. the payment of medical bills.
Namie and Yamada have expressed concern about burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But they fail to explain why this concern wouldn’t apply equally to any other lawsuit involving a hostile work claim, including sexual harassment or race discrimination lawsuits. Why should targets of workplace bullying be singled out?
The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious. Unwelcome conduct becomes illegal when it is so severe and pervasive that it interferes with the target’s work performance or creates a work atmosphere that is offensive or abusive. (Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)).
The Journal is a publication of the University of Illinois College of Law and The International Society for Labor Law and Social Security. The special issue may be available for perusal at your local law library. It can be found online at Lexis/Nexis, Westlaw, and HeinOnline. It is available for purchase ($10) at the journal’s web site: http://www.law.uiuc.edu/publications/cll&pj/contact.html
– by Patricia Barnes
*** Note: This article was updated on 2/7/12