Urge the Senate Committee on Labor and Business in Oregon to move workplace anti-abuse legislation forward with amendments

Workplace bullying and mobbing are forms of psychological abuse perpetrated through interpersonal abuse that violate an employee’s inherent basic human right to dignity.


The abuser playbook

There's a pattern to abuse at work. Here’s how it works:

  1. Workplace bullying typically begins when one employee, who is generally insecure and/or jealous, is threatened by the competence or demeanor of another employee. The bully targets an unsuspecting employee to minimize and/or eliminate the perceived threat the employee poses to them. Bullies use persistent psychological abuse to control the narrative. They try to convince the employee they are incompetent. They try to convince others the employee is incompetent.
  2. In toxic work environments, when employees report psychologically abusive behavior to the proper workplace authorities, those authorities willfully ignore the complaints. Employers are not liable for psychologically abusive behavior, nor do many want to be. The employer misleads the unsuspecting employee to believe they have a legitimate complaint process to remedy the problem.
  3. The employer fails to alter the employee's work environment. The employer doesn’t remove the stressor. The emboldened bully continues to harass and abuse the target without consequence or deterrent. The complaint process is unnecessarily prolonged.
  4. The unsuspecting employee voluntarily leaves, dies, or is fired, succumbing to the silent killer stress of the work environment. There is significant physical, mental, and emotional injury as well as severe economic harm. Game over. The bully wins. Her perceived competition is gone. The employer wins. Their perceived threat of liability is gone. The unsuspecting employee had done nothing to provoke either.
  5. Trauma upon trauma. When the employee realizes the institutional duplicity and complicity of tampering with their health and livelihood, forcing them off the payroll to avoid liability, trauma upon trauma occurs.
  6. Upon trauma. The employee further realizes there is no legal recourse for any of it.

Who’s picking up the tab for the long-term health care of millions of unemployed citizens and basic needs costs? You are: the taxpayer. And you have been for decades.


Why we need a law

Workplace psychological abuse is employee exploitation.

Employers are not explicitly liable for the psychological harm of their employees — nor do they want to be. At its root cause is avoidance of employer liability. The status quo, employers are negatively incentivized to address the issue. Employers choose to avoid a perceived threat of liability over human well-being.

The WHY behind the bill:

  1. There is no current law that protects workers from workplace psychological abuse. Unless you’re a member of a protected class (sex, race, age, etc.) under the Title VII of the Civil Rights Act — and can prove the abuse is from your protected class membership — you don’t have rights to psychological safety at work under law. Intentional Infliction of Emotional Distress (IIED) law requires victims to not only prove the abuser’s intent but also to show severe emotional distress, a near impossible threshold to prove.
  2. Proving intent doesn’t work with anti-discrimination law — and it won’t work with mistreatment in general. Anti-discrimination law used to work when it focused on impact. The courts’ shift in the 1980s to a focus on intent has rendered anti-discrimination law nearly useless. It’s no secret it’s an epic failure. The WPSA does not require victims to prove their abuser’s intent, so it would strengthen protections for women and non-white workers who can prove discriminatory impact but not intent.
  3. Workplace psychological abuse is an individual problem and an organizational one. Courts treat anti-discrimination law, which psychological abuse overlaps with, as an individual problem. But it’s a systemic problem often rooted in negative stereotypes and threats to power and control. The WPSA focuses on both individual recourse AND collective recourse to address the problem at the root:  Employers control the work environment.
  4. Oftentimes, employers don’t enforce their own policies or practice what they preach around training — and even retaliate against those who report abuse. There is no law stating employers have to follow their own policies. Tennessee passed a bill incentivizing workplace anti-abuse policies, and California passed a training-only bill. Neither are effective. Policy and training laws don’t work. In addition, workers compensation laws don’t recognize toxic work environments or psychological injury. They are employer-controlled and require employees to waive their right to sue. Employers know there are loopholes in the law and misuse those loopholes to employee detriment.
  5. Employers need accountability to make our workplaces psychologically safe. The WPSA creates an accountable incentive for employers to prevent and address workplace psychological abuse and uphold psychological safety in the work environment. The WPSA requires employers to do what’s right — and requires the public reporting of attrition rates and law violations to get in front of the health and economic harm to targeted and victimized employees before it can occur.
  6. We can prevent harm of any kind. No law will eradicate an issue, but the goal is to prevent workplace psychological abuse as much as possible. Prevention means not waiting until harm occurs (not just psychological or physical harm). Sexual harassment law acknowledges a hostile work environment is enough for legal recourse. The WPSA sets its baseline for a legal claim at a toxic work environment, consistent with sexual harassment law.
  7. A remedy must be affordable for all workers. There is no current law that protects workers from workplace psychological abuse. Unless you’re a member of a protected class (sex, race, age, etc.) under the Title VII of the Civil Rights Act — and can prove the abuse is from your protected class membership — you don’t have rights to psychological safety at work under law. Making abuse illegal regardless of protected class status while giving more protections to members of protected classes — and putting it under its own agency — would lessen the EEOC and state agency backlogs and lessen the burden on the courts.


Why discrimination law is ineffective at protecting workers from bullying and mobbing

It’s no secret discrimination law is ineffective at protecting workers from mistreatment in the American workplace. Bullying and mobbing are forms of psychological abuse that make our work environments unsafe. It’s time to fill the gap.

There is no denying mistreatment at work has a discriminatory impact. According to the 2016 EEOC Select Task Force for the Study of Workplace Harassment Report, “During the course of fiscal year 2015, EEOC received approximately 28,000 charges alleging harassment from employees working for private employers or state and local government employers.” Their findings:

  • “…anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace.”
  • “…70% of the respondents reported experiencing some form of verbal harassment and 45% reported experiencing exclusionary behaviors [in a survey regarding racial and ethnic harassment].”
  • “35% of LGB-identified respondents who reported being ‘open’ at work reported having been harassed in the workplace.”
  • “…20% of respondents with disabilities reported experiencing harassment or unfair treatment at work because of their disability.”
  • “…8% of respondents reported having been exposed to unwelcome comments about their age.” Source: https://www.eeoc.gov/select-task-force-study-harassment-workplace

If you are not in a protected class, you have even less protection in the American workplace when it comes to bullying and mobbing.


Why we need amendments to proposed legislation

Ask Senator Manning to amend SB851 to give employees the right to a psychologically safe work environment.

Health harm in Section 1(4 and 5). The focus on health harm requires a high threshold from workers that sexual harassment law doesn't even require. If workers will be required to prove health harm, they will 1) need to wait until their health is harmed and 2) be subjected to employer-controlled examinations that for decades employers have used to discredit employees and attribute harm to another aspect of the employees' lives.

Intent by use of the word "deliberately" in Section 2(1). Research shows anti-discrimination law does not adequately protect employees nor has it proved to disrupt social hierarchies at work — all because discriminatory intent is too high of a threshold to prove — even when it’s there. The courts moved from a focus on impact in the early years of Title VII of the Civil Rights Act of 1964 to a focus on intent during the 1980s.

This pushback from the courts has left those suffering from harmful behavior with a discriminatory impact — and their colleagues suffering from similar behaviors without obvious discriminatory impact — without legal recourse.

To fix this significant loophole, we need to focus on behavior. We already legislate discriminatory forms of workplace bullying, but members of protected classes still suffer due to lack of adequate protections. General abuse at work has a disproportionate impact on members of protected classes, especially women and non-white workers, and anti-discrimination law is insufficient to protect employees.


This bill is based on the Healthy Workplace Bill rather than the submitted Workplace Psychological Safety Act. Brandeis professor Carol Osler states, “In most legitimate cases the definition of bullying... would protect the bully while harming the target and the employer…. [The bill] is unlikely to bring substantial improvements and, for well-understood reasons, could make our workplaces less safe.”

As it stands, the bill is a pro-employer bill that will not protect employees who suffer from abuse at work. It has been proposed in several states and has not passed anywhere in the United States.


Considerations for the bill

Section 1(4 and 5). Targets should not have to wait for severe — or any — psychological or physical harm to have a legal claim. As the EEOC reiterated, we want to stop harassing behaviors as soon as possible. We need a law that says the toxic environment itself is damage, just as the EEOC has already recognized a hostile environment caused by harassment based on protected status is harmful. As written, this bill is regressive, as the Supreme Court has already decided that a hostile work environment is actionable and that psychological injury need not be proven:

1986: Meritor Savings Bank v. Vinson. The classic sexual harassment scenario involving gendered work roles. A bank teller complained that shortly after she was hired, her supervisor invited her out to dinner and then “suggested that they go to a motel to have sexual relations”; after resisting, she surrendered. The Supreme Court affirmed that sexual harassment involving a hostile work environment is actionable under Title VII.

1993: Harris v. Forklift Systems. The “new” sexual harassment scenario involving non-gendered work role conventions. A higher-up of a company that rented equipment to construction companies continually made a woman manager the target of such comments as, “You’re a woman. What do you know?,” “We need a man as the rental manager,” and called her “a dumb ass woman.” “In front of others, he suggested that the two of them ‘go to the Holiday Inn to negotiate [Harris’ ] raise.’ … Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket …. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up …. He made sexual innuendos about Harris’ and other women’s clothing.” The behavior is humiliation tactics to address his own anxiety about a threat to his male authority. The Supreme Court decided that Title VII workplace-harassment suits need not prove psychological injury.

In addition, the issue of employee harm opens up employees for scrutiny and re-trauma; employers often use their own physicians to minimize harm or attribute the harm's origin to a different cause other than their mistreatment.

Section 1(6). The law should outline the specific behaviors deemed unlawful. False narratives and rigged internal reporting protocol are common abusive behaviors used but are omitted from this bill language, which should contain a comprehensive list of specific unlawful behaviors.

Section 2(1). To prevent and eliminate damaging behavior, we can not require targeted employees to prove the abuse is intentional, deliberate, extreme, or outrageous. As written, this bill will create a legal loophole protecting the bully rather than the victim of abuse because the threshold for proof is too high/nearly impossible to reach. This point is backed by extensive research.

Section 5(2a). Reasonable care is not defined. The courts need specific direction on what constitutes reasonable care.

Section 5(2b). Employees should not have to be limited to an employer's protocol. Too often, employers establish internal processes for reporting unacceptable behavior and run trainings on them. Trusting in their processes, employees report even discriminatory behavior, only to be ignored by Human Resources, who follow their legal department's advice to avoid liability. Employees believe a fair investigation is happening behind-the-scenes only to realize months later that the process is being prolonged while they're still subjected to a toxic work environment. It's a "we're against discrimination, but it doesn't happen here" response backed by research. When they see a lack of action from the employer, others avoid speaking up for fear of the same lack of response and retaliation.

Section 5(3a and 3b). Bullies and employers create and maintain a false narrative. Performance evaluations are often weaponized against employees to begin a paper trail of a false narrative against the employee for simply posing a threat to the bully's personal agenda. The employer often backs that false narrative to avoid liability.

Other considerations:

More likely to be bullied but less likely to afford legal representation, low-wage workers should not have to use the pay-to-play legal system to seek help. These cases could be added to Bureau of Labor and Industries' (BOLI's) workload so an agency whose representatives understand the underlying issues can assist practically.

This behavior must be criminalized in extreme situations. Not only does this behavior ruin lives, but it also can open up federal funding for resources for victims when this behavior is criminalized as should have happened for Evan Seyfried and Kerri Moynihan, two employees who took their lives after abuse at work when they saw no hope for their situations.

This issue is only an individual one. It is also a systemic one and should be treated as one. If we want to create psychologically safer workplaces, we should go after the root issue: the oppressive, dehumanizing system that reinforces positive stereotypes for men, white workers, and high-wage workers and negative stereotypes for women, people of color, low-wage workers, and other groups considered “other” by the dominant groups. We should call for organizational accountability: the quarterly reporting of the number of discrimination and psychological abuse complaints and discipline, workers’ compensation claims, absenteeism rates, termination rates, stress leave rates, attrition rates, investigation rates, followup action rates, the workforce gender and racial makeup, and de-identified wage and salary data by protected category to government agencies for public access.



We as workers have an inherent right to basic human rights. Equality. Dignity. Respect. Fair Process. This bill would provide much-needed incentive for employers to acknowledge, monitor, detect, prevent, discourage, and adequately address incidences of psychological abuse before targets incur significant harm if amended.
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