Understanding Workplace Bullying Legislation
By Randi Melnick
As an employment attorney, I have heard countless tales of abuse suffered by employees in the workplace. Employees being subjected to mean spirited or degrading treatment often feel helpless, or, even if they are proactive and make a complaint to Human Resources, they are most often told to toughen up, or find a new job. With the realities of today's increasingly stressful and competitive workplace, it is worth a moment of reflection to consider: what level of civility do we expect from those with whom we work, and what the consequences should be for those who break these basic codes of conduct?
It is understood that workplaces can have tricky cultural norms, and some people will be more skilled than others at communicating. However, there is a difference between a manager or coworker who lacks tact and one who goes out of his way to purposefully target an individual. When one is verbally abused or intimidated, when work is sabotaged, or when humiliation is used as a tactic, that is bullying. And it is not always illegal in the United States.
For years, the law has protected categories of people who have been mistreated on the basis of their status in a protected group - whether it be their race, national origin, religion, age, disability, or gender. In recent years, we've seen an expansion of the groups we protect to prohibit mistreatment on the basis of sexual preference. However, despite all of that legislation to protect minorities, the law in the United States - at both the federal and state level - still fails to protect ALL workers from being mistreated in the workplace, where the mistreatment is not based on a protected status.
Fortunately, 26 states have introduced Anti-Bullying bills that seek to prohibit mistreatment in the workplace. For everyone. Period. Unfortunately, these bills have not been passed. Critics of the concept posit that it is unreasonable to legislate manners. But, this concern is erroneous as the bills address conduct so severe that it creates attendant health issues.
While each state has its own unique bill, the themes among them are consistent. Below is an examination of the "Healthy Workplace Bill" in New York State to consider as an example. ______________________________________________________________________________
Introduced but not passed by both the Assembly and the Senate, the Healthy Workplace Bill would amend the NYS Labor Law because the "State is dependent upon healthy and productive employees." See, S3863; AB4965. The bill recognizes that abusive behavior in the workplace is a problem for employees and employers alike. While employees enduring bullying may suffer from a host of physical and emotional ailments, employers are burdened by reduced productivity and morale, increased absenteeism and high turnover rates. Thus, the aim of the bill is to protect both parties.
The bill would prohibit employers from subjecting employees to an "abusive work environment". That critical term is defined as an employment condition where an "employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects an employee to abusive conduct that causes physical harm, psychological harm, or both". It is key to note that a plaintiff will have to demonstrate that the actor had an intent to cause pain or distress, as well as prove the actual physical and/or psychological harm he or she suffered.
To establish that an abusive work environment has been created, a plaintiff will have to prove that he or she was subjected to "abusive conduct". The bill contains a litany of examples of the form that the mistreatment may take; however, the list is not exhaustive. Some of these examples include: repeated verbal abuse; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee's work performance.
Lawmakers were careful to specify 3 points within the definition of abusive conduct:
1. The acts and/or omissions must be such that a reasonable person would find abusive based on the severity, nature and frequency of the conduct;
2. A single act will not normally be sufficient to establish the threshold for abusive conduct except for instances of an "especially severe and egregious act"; and
3. Conduct that exploited a known psychological or physical illness or disability would be an aggravating factor.
Practitioners would look to these components in determining the viability of a potential claim as well as assessing its value. It may be instructive to examine the precedent under hostile work environment cases where a plaintiff must prove that the harassment was "severe or pervasive" to guide courts in deciding what scenarios will constitute "abusive conduct".
Much like our existing anti-discrimination laws, the bill contains an anti-retaliation provision, protecting employees who have in good faith opposed what they reasonably consider to be an unlawful employment practice. The protection would not be limited solely to the employee who believes himself bullied, but also extends to one who has "testified, assisted, or participated in any manner" in any kind of investigation proceeding under this article. This broad protection is in parity with our existing workplace laws as well as in keeping with the overall spirit of what the bill seeks to accomplish.
Furthermore, the bill would impose liability on the offending individual(s), as well as vicarious liability on the employer. While an offending individual may assert for an affirmative defense that he or she acted in violation of this law at the "direction of the employer, under actual or implied threat of an adverse employment action1," the bill is silent as to the standard of proof required to make out this affirmative defense.
Where the allegation does not include an adverse employment action, employers may plead as an affirmative defense that they exercised reasonable care to prevent and promptly correct any actionable behavior, and, that the complaining employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer. Additionally, where the complaint is based on an adverse employment action, the employer may plead as an affirmative defense that such adverse employment action was reasonably taken for poor performance, misconduct, or economic necessity; that the action was based on a reasonable performance evaluation; or that the action was based on an employer's reasonable investigation about potential illegal or unethical activity.
The affirmative defense available to employers in conjunction with the requirement that the conduct must be considered in light of a "reasonable person" rather than from the subjective view of the plaintiff, is a clear attempt to balance the needs of both parties. These aspects of the bill contemplate the scenarios in which it would be inappropriate to impose liability, and plaintiff's attorneys would be wise to do due diligence into the strength of an employer's position on these issues early in the process of vetting a case.
The bill's proposed remedies are expansive. In addition to enjoining the defendant from engaging in the unlawful employment practice, the court may order reinstatement, removal of the offending party from the plaintiff's work environment, back and front pay, medical expenses, compensation for pain and suffering and emotional distress, as well as punitive damages and attorney fees. However, where there was no adverse employment action, punitive damages and compensation for emotional suffering are only to be awarded where the conduct was "extreme and outrageous". Notably, individually named employee defendants are not shielded by this limitation.
As with all new developments in the law, it will take some time to see how courts will interpret it and apply it to the facts presented. However, one thing we know for certain: There will always be conflict between employers and employees, and advocates for either side should support the enactment of the Healthy Workplace Bill in New York, and across the country.
1 Adverse employment action is defined as an "outcome which negatively impacts an employee, including but not limited to, a termination, demotion, unfavorable reassignment, failure to promote, disciplinary action or reduction in compensation".
This Article, Understanding Workplace-Bully Legislation, first appeared in Employment & Labor Relations Law, Summer 2014, Vol. 12 No. 4 on August 13, 2014.
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