Pass the Workplace Psychological Safety Act

All 50 governors

Workplace bullying and mobbing are forms of psychological harassment and psychological abuse that violate an employee’s inherent basic human right to dignity: severe or pervasive infliction of hostile and unethical words and/or actions, intentional or unintentional, direct or indirect, or omissions, directed in a targeted and/or systematic manner that creates a hostile work environment that is offensive and a reasonable person would find unsuitable to perform regular duties and tasks. A single severe incident of such behavior may also constitute psychological abuse.

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 harassment to control the narrative. They try to convince the employee they are incompetent. They try to convince others the employee is incompetent.
  2. In hostile work environments, when employees report psychologically abusive behavior to proper workplace authorities, those authorities ignore their complaints. Employers are not liable for psychologically harassing behavior, nor do many want to be. The employer misleads the unsuspecting employee is misled to believe they have a legitimate complaint process to remedy the problem.
  3. The employer/its representative employees fail to alter the employee's work environment. The employer/its representative employees don't remove the stressor.
  4. The emboldened bully continues to harass and abuse the target without consequence or deterrent. The complaint process is unnecessarily prolonged.
  5. 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.
  6. 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.
  7. 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.


The solution: the Workplace Psychological Safety Act (Evan's Law)

Workplace psychological harassment and psychological abuse are issues of 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 even if they claim to value safe workplaces. Employers choose to avoid a perceived threat of liability over human well-being.

The Workplace Psychological Safety Act (WPSA) takes that choice away and provides a cause of action for employees who suffer from workplace psychological harassment and/or psychological abuse.

The WHY behind the bill:

  1. There is no current law that protects workers from workplace psychological harassment and/or 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 harassment and psychological abuse is an organizational problem, not an individual one. Courts treat anti-discrimination law, which psychological harassment and 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: with employers. 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 hostile 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. The bill will fill those loopholes.
  5. Employers need accountability to make our workplaces psychologically safe. The WPSA creates an accountable incentive for employers to actually prevent and address workplace psychological harassment and psychological abuse. 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 harassment and 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 hostile work environment, consistent with sexual harassment law.
  7. A legal remedy must be affordable for all workers. Our legislators designed our pay-to-play legal system to favor those who can afford lawyers. We must do better. As with regulations for other harms, we must also put money toward this problem if we want to fix it. Making abuse illegal regardless of protected class status (giving more protections to members of protected classes) would lessen the EEOC and state agency backlogs and lessen the burden on the courts. The WPSA would ensure that everyone, especially our most vulnerable, low-wage workers, can access a remedy while still providing for a private action.

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 harassment and 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.

Workers deserve psychologically safe work environments.
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Westborough, MA

To: All 50 governors
From: [Your Name]

Workplace abuse and mobbing a severe and pervasive phenomenon in the U.S. involving a violation of the basic human right to dignity. Bullying tactics include false accusations, exclusion, withholding necessary resources, sabotage, verbal abuse, put-downs, and unreasonable demands — resulting in a host of stress-related symptoms including anxiety, depression, PTSD, and suicide ideation.

Simply put, workplace abuse and mobbing ruin lives and kill people. A study published in the American Journal of Public Health in September 2015 revealed that bullied targets are "twice as likely to have suicidal thoughts than those who were never bullied" — and it can happen to any of us. We abandon hope over time when bullies ruin our image. Abandonment by coworkers who don't want to become the next target can lead to loneliness and despair. This response from abuse that won't let up is part of the natural human stress response. Luckily, stopping it can lead to recovery and healing of the brain.

Here's who workplace abuse and mobbing impact:

Anywhere from 30-90% of US workers as either targets or bystanders. Targets suffer mental, emotional, and physical health harm. There's also a ripple effect on witnesses and families. But here's what's worse: targets of workplace bullying are often women, Black workers, Latinx workers, workers over 40, and workers with disabilities. When discrimination law moved from a focus on impact to intent in the 1980s, the law became much less effective in dismantling the social hierarchies at work that keep white men in the vast majority of power positions in the US workforce, according to University of Chicago researchers in a 2017 study. Right now, we simply don't have adequate protections from bias that manifests itself in abuse of power that prevents women, Black workers, Hispanic workers, workers over 40, workers in the LBGTQ community, and workers with disabilities from getting ahead. This bill would give more protections to all workers, especially those who suffer from legal discrimination (the kind they can't prove).
Organizations. Workplace bullying costs employers billions of dollars annually in lower productivity and morale, increased absenteeism and turnover, training costs, and higher employee benefits costs. To avoid liability, higher-ups most often ignore complaints or retaliate, including pushing targets out of their jobs. Yet managers who get rid of bullies benefit financially. One study shows that “companies who focus on effective internal functioning and communication enjoy a 57 percent higher total return, are more than 4.5 times more likely to have highly engaged employees, and are 20 percent more likely to report reduced turnover when compared to competitors who demonstrate ineffective communication practices” (Civility Partners LLC, 2009).
Society. When employers ignore employee well-being internally and push targets out, they externalize health care and basic needs costs onto taxpayers. Abused targets who leave unhealthy work environments are frequently uninsured. When they get sick, they turn to ERs for care, where delivering primary care is not cost efficient. By the time they get there, their health has already deteriorated to a point where treatment expenses are far greater than earlier intervention would have been. This bill would incentivize employers to address employee well-being internally and not make it a public problem.
It's not a target problem. Research shows there's ZERO evidence to support targets brought on the abuse through weakness. In fact, evidence shows the opposite. Targets are often high performing, highly ethical employees whose competence poses a threat to their low performing, low ethical bosses. The bully's motivation is to keep the upper hand — an ego-driven control move that's about abuse of power. Bullied are often deceptive managers who trick others into thinking the target is the problem, setting the stage for mobbing.

Prevention is both less expensive and more effective than remediation. Stanford professor Jeffrey Pfeffer says US employers causing workplace stress may be responsible for "120,000 excess deaths per year," which would make workplaces "the fifth leading cause of death," and account for about "$180 billion in additional healthcare costs." About "half of the deaths and 1/3 of the excess costs could be prevented," meaning they resulted from not tending to well-being.

We have environmental regulations to limit environmental risks, but we don’t mention the human impact of abuse. We don’t leave environmental pollution to the discretion of CEOs. So why do we leave employee health up to CEOs — when CEOs too often lead in ways that serve neither the employees nor the public nor themselves when you include the hidden costs of turnover and absenteeism?

How the WPSA will solve the problem
The WPSA will protect the inherent human right to dignity at work by prohibiting all forms of bullying in the U.S. workplace. It provides a comprehensive definition of workplace bullying, assuring all workers are protected against infringement against their inherent dignity, and incentive for employers to prevent, detect, remedy, and eliminate workplace bullying before targets suffer irreparable harm. It assures all targets access to a legal remedy to make targets as whole as possible.

WPSA is rooted in these principles:

Workplace abuse isn’t covered by existing law. Harassment isn’t illegal unless targets are members of a protected class (sex, race, age, etc.) under the Title VII of the Civil Rights Act and can prove the abuse is from their protected class membership. Employers know there’s a loophole in the law for not addressing bullying. The bill will fill that gap in the law.
Other potential avenues for relief for targets of workplace bullying are ineffective. Intentional Infliction of Emotional Distress claims require targets to prove the bully’s intent and to show severe emotional distress, setting too high of a bar for relief. Workers comp laws often fail to address workplace bullying and psychological harm, and when they do, they provide inadequate relief. WPSA will provide targets a clear avenue to be made whole and to continue their careers.
Employers often don’t enforce their own policies and retaliate against those who report bullying. The target leaving or getting fired is generally what stops the bullying. Because employers aren’t required to follow their own policies, a law requiring employers to create anti-bullying policies and training doesn’t protect targets. Tennessee passed a bill incentivizing workplace bullying policies, and California passed a training-only bill. Neither have proven effective. WPSA does not give employers immunity simply for having a policy. Instead, WPSA creates an incentive for employers to actually prevent, detect, remedy, and eliminate workplace bullying.
Employers need incentive to change. We know over the history of workplace harassment that the business case is not enough to convince employers to adequately address workplace bullying. Instead, the penalties for failing to do so much be enough to provide incentive. An effective bill must require employers to adopt all necessary steps to eliminate workplace bullying — steps well-established in bullying literature. Failure to do so must expose employers to meaningful penalties. Established defenses have not been effective in preventing, detecting, remedying, and eliminating workplace bullying. An effective anti-bullying bill must avoid adopting immunity defenses.
We can’t prove intent. We’ve learned from US and international jurisprudence that it’s often impossible for targets to prove the bully’s intent, but the bullying still has negative impacts. Intent (general or specific) must not be one of the required elements for a claim of workplace bullying. Bullying scholars and legal practitioners both understand the difficulty of proving intent. As a result, intent is generally not included in the research definition of bullying and should not be included in the law. WPSA does not require targets of bullying to prove their bully’s intent.
Psychological and physical harm is only one aspect of damage. We’ve learned through US harassment jurisprudence that targets should not have to suffer psychological or physical harm before they have a cognizable claim. As the EEOC has recently reiterated, we want to stop harassing behaviors as soon as possible. An effective bill must establish a standard of harm that mirrors the EEO laws that the hostile environment or the bullying itself is enough of a harm to have a cognizable claim. Just as the EEOC and the judicial system have recognized that a hostile environment caused by harassment based on a protected status is harmful to workers, WPSA recognizes the hostile environment created by bullying is also a harm that should have a legal remedy.
Legal action must be affordable to everyone. The majority of US workers are unable to afford access to the pay-to-play legal system. An effective anti-bullying bill must account for this lack of access and provide access to remedies via a governmental agency. A governmental agency with enforcement and oversight of an anti-bullying bill will be able to not only provide access to targets, but also provide regulations, enforcement guidance, and model policies for employers. Conflict resolution via a governmental agency will be more expeditious than litigation, prevent tying up already overburdened courts with additional litigation, and provide paths for mutually agreeable resolutions that will allow employers and employees to continue a productive working relationship. WPSA would assure targets several paths to remedies including access to a state agency with enforcement power and private litigation should they choose that route.
We as workers have an inherent human right to dignity. This bill will provide much-needed incentive for employers to prevent, detect, remedy, and eliminate workplace bullying before targets suffer irreparable harm, organizations decline, and society pays the price.

Targets deserve to be made whole after abuse.