S1753 has been introduced in New York, but its language will not protect employees.

Research shows anti-discrimination law does not 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.

We need to focus on the 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.

Issues with the Healthy Workplace Bill

The Healthy Workplace Bill (HWB) is proposed with the best of intentions but fails to provide adequate protections for workers. Bullying and mobbing are interpersonal abuse systems highly affiliated with significant health harm. We appreciate that Wisconsin legislators are diligent to ensure a proposed law will adequately address all underlying issues.

In a previous session, during the public hearing for HWB, former Co-Chair of the Joint Committee on Labor and Workforce Development and Representative Paul Brodeur of Massachusetts stated that he didn’t feel the HWB was adequate as is.

Brandeis professor Carol Osler states, “In most legitimate cases the definition of bullying in the Healthy Workplace Bill would protect the bully while harming the target and the employer…. The HWB… 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.

Considerations for the bill

• 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.

• 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.

• 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 the state human rights commission'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.

• 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.