International Workplace Bullying Bans

Posted: September 9, 2011 in Ban Bullying Globally

Here is an important article from the American website Bench and Bar Minnesota about how bullying is being outlawed ibn other parts of the world.

Research on workplace bullying began in the 1980s, when Swedish psychiatrist
Heinz Leymann concluded that a kind of long-term hostile behaviour practitioners had observed in school children also occurred in the workplace.  Leymann dubbed  the phenomenon “mobbing.”  Leymann’s work led to the development of anti-bullying legislation in Sweden, France, the Netherlands, Belgium, Denmark, Finland, and Quebec.

France’s 2002 Social Modernization Law authorizes fines and imprisonment for “moral harassment.”  The law targets repeated acts having the intent or effect of degrading the employee’s working conditions by impairing the employee’s rights and dignity, affecting the employee’s physical or mental health, or compromising the employee’s future career. Labour Code provisions of the law punish moral harassment with one year in prison and/or 3,750 euros; while the Penal Code aspects of the law subject an offender to one year in prison and a fine of 15,000 euros.

Quebec’s 2004 anti-bullying legislation provides civil remedies.  In 2004, Quebec amended its Labour Code to ban “psychological harassment,” termed “vexatious behavior in the form of repeated and hostile or unwanted conduct … that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee.”  A harassed employee may file an administrative complaint.  The responsible agency may order equitable remedies or award indemnity for lost wages or loss of employment, punitive and “moral damages.”

The Canadian Parliament rejected a similar law in 2004. In 2007, the European Union’s social partnership organizations (business and labour groups that negotiate EU employment policy) signed a “framework agreement” obligating
its members to implement a zero tolerance policy on status-blind workplace
harassment.  This agreement sets training, investigation and management
guidelines for workplace bullying.

U.S. Legislative Movement

The anti-bullying lobby in this country has attempted to build on the
international legislative momentum.  Suffolk University Law School Professor
David C. Yamada drafted model anti-bullying legislation termed the “Healthy
Workplace Act.”9  The act creates a cause of action for subjecting an employee
to an “abusive work environment.”  Legislators in California, Oklahoma, Oregon,
New Jersey, Connecticut, Vermont, Washington, Montana, Hawaii, Kansas, Missouri and Massachusetts have introduced some version of Yamada’s proposed act in the past five years.

The act defines “abusive work environment” as follows:

An abusive work environment exists when the defendant, acting with malice, subjects the complainant to abusive conduct so severe that it causes tangible harm to the complainant.

Complex definitions flesh out this term.  For example, “malice” is:

the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification.  Malice can be inferred from the presence of factors such as:  outward expressions of hostility; harmful conduct inconsistent with an employer’s legitimate business interests; a
continuation of harmful, illegitimate conduct after the complainant requests that it cease or demonstrates outward signs of emotional or physical distress in the face of the conduct; or attempts to exploit the complainant’s known psychological or physical vulnerability.

“Abusive conduct” is “conduct that a reasonable person would find hostile,
offensive, and unrelated to an employer’s legitimate business interests.”  The
act specifies that a fact-finder should consider “the severity, nature, and
frequency” of the conduct in determining whether it is abusive.  It lists
examples of “abusive conduct”:

  • Repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets;
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
  • The gratuitous sabotage or undermining of a person’s work performance.

The list is not intended to be exclusive.  The model legislation specifies that a single act is “normally” not enough to represent abusive conduct, but “an
especially severe and egregious act” may be enough.  The act states that
“tangible harm” includes the material impairment of mental or physical health,
as documented by “a competent physician, psychologist, psychiatrist, or
psychotherapist” or “competent expert evidence at trial.”

The act creates three affirmative defenses.  The first, modeled on the
Faragher/Ellerth defense in Title VII actions, protects an employer
when it exercised reasonable care to prevent and promptly remedy actionable
behavior if the complainant unreasonably failed to use “preventive or corrective
opportunities.”  The second applies to a complaint “grounded primarily” on a
negative employment decision “made consistent with an employer’s legitimate
business interests,” such as a termination based on the employee’s inadequate
performance.  The third defense protects against actions “grounded primarily
upon a defendant’s reasonable investigation about potentially illegal or
unethical activity.”

As of this writing, anti-bullying bills had not made it out of legislative committee in the five states in which they were introduced this year (New York, New Jersey, Connecticut, Vermont, and Washington).

Source: http://www.mnbar.org/benchandbar/2008/nov08/bully.html

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s