Dealing with the Equal-Opportunity Jerk
Most people need to work to survive. Jobs not only provide income, but they also give people a sense of pride, meaning, and identity. But what can employees do when their workplace culture is toxic or overwhelmed by an abusive supervisor?
Under current laws, abusive workplace behavior that is motivated by a consideration such as age, gender, religion, race, or other protected category under discrimination laws is illegal. But what if the abusive behavior is committed by an all-around jerk, someone who is mean and abusive generally? That type of behavior is not only still legal, but it can actually be a defense to a claim of discrimination (if the victim perceives that their mistreatment was because of their membership in a protected category)! Defense lawyers even have a name for this type of situation: they often refer to it as the “equal-opportunity ass****” defense. These types of toxic workplaces are frequently discussed in the news, as evidenced by recent coverage of an ongoing external investigation into the workplace culture at WGBH. See: Amid ratings challenges at GBH, external investigation probes workplace culture (Boston Globe 2/8/2024).
Some help may be on the horizon soon, as more state and local legislatures are waking up to this common workplace problem.
Massachusetts is Considering a Ban on Workplace Bullying
The Massachusetts State Legislature is currently considering a bill commonly referred to as the Workplace Psychological Safety Act, Bill H. 1882. The bill’s purpose is to close the gap that exists between anti-discrimination laws and workplace behaviors, like bullying, which don’t give victims a cause of action to pursue. This bill would make it illegal for employers to engage in psychological abuse, defined as “mentally provocative harassment or mistreatment that has the effect of hurting, weakening, confusing or frightening a person mentally or emotionally.” Common examples of workplace psychological abuse, or workplace bullying, include verbal abuse, threatening behaviors, intimidation, humiliation, and work sabotage.
Under the proposed legislation, employers will need to adopt anti-retaliation policies, monitor incidents of psychological abuse, and initiate investigations within five business days of receiving an employee complaint about psychological abuse. If not adequately addressed, workers would have the ability to file restraining orders against the offending employees and claim economic and punitive damages in addition to being compensated for related medical expenses.
Workplace Bullying in Other States
So far, thirty-two states have introduced the Healthy Workplace Bill legislation, HWB. However, during the 2023-2024 legislative session, it is only active in three states: Massachusetts, New York, and West Virginia. The HWB’s goal is to correct abusive work environments in American workplaces. Although not adopted in its entirety, HWB has provided a roadmap for states such as Massachusetts to follow in future legislation.
While no state has adopted a law that makes workplace bullying illegal or actionable for a victim, three states have adopted laws designed to reduce bullying in the workplace. These are usually focused on training or mitigating the effects of bullying. California requires workplaces with 50 or more employees to conduct training and education regarding abusive workplace conduct. Tennessee passed a “Healthy Workplace” bill in 2015 that encourages employers to adopt anti-bullying policies which immunize them from liability in lawsuits alleging intentional or negligent infliction of mental anguish due to the abusive conduct of employees. Utah passed a law in 2015 requiring its state agencies to train supervisors and employees on ways to prevent abusive conduct. The training must define abusive conduct, its ramifications, and provide the resources available to employees who are subject to abusive conduct and the grievance process.
What Should Employers Be Doing?
If workplace psychological safety laws pass in Massachusetts and other states, employers will need to increase their training resources to ensure that they are compliant. They should plan to train their employees with specific examples of what conduct constitutes bullying.