Pass the Workplace Psychological Safety Act
All 50 governors
The abuser playbook
- 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.
- 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 they want to be. The employer misleads the unsuspecting employee to believe they have a legitimate complaint process to remedy the problem.
- 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.
- 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. Their perceived competition is gone. The employer wins. Their perceived threat of liability is gone. The unsuspecting employee had done nothing to provoke either.
- Trauma upon trauma. When the employee realizes the institutional tampering with their health and livelihood, forcing them off the payroll to avoid liability, trauma upon trauma occurs.
- 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 thousands of unemployed citizens and basic needs costs? You are: the taxpayer. And you have been for decades.
The solution: the Workplace Psychological Safety Act
- 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 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.
- 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, non-white workers, workers with disabilities, and workers in the LGBT community who can prove mistreatment but not intent.
- 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 also 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.
- 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 by themselves don’t work. In addition, workers compensation laws don’t recognize toxic work environments or psychological injury. Workers compensation is employer-controlled and requires employees to waive their right to sue. Employers know there are loopholes in the law and misuse those loopholes to employees' detriment.
- Employers need accountability to make our workplaces psychologically safe. The WPSA creates an incentive for employers to prevent and address workplace psychological abuse and uphold psychological safety at work. The WPSA requires employers to do what’s right — and requires the public reporting of attrition rates and other data to get in front of the health and economic harm to targeted and victimized employees before it can occur.
- 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.
- A remedy must be affordable for all workers. Making abuse illegal regardless of protected class status while giving more protections to members of protected classes — and putting it under an 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
- “…anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace.”
- “…[in a survey regarding racial and ethnic harassment], 70% of the respondents reported experiencing some form of verbal harassment and 45% reported experiencing exclusionary behaviors.”
- “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.
What the Workplace Psychological Safety Act will do
- It gives targeted employees legal recourse for employers creating a toxic work environment with a focus on specific, common behaviors that a reasonable person would deem toxic. Right now, it’s perfectly legal to be abusive at work in the U.S., even though it’s illegal in most of the industrialized world. U.S. employers simply have way too much power. Targeted employees will be able to:
- File a restraining order against the employee who violates this Act depending on state law.
- Call for an internal investigation.
- Bypass a rigged internal process by calling for an investigation by OSHA or a similarly charged state commission, with positions funded by employers themselves so they’ll stop passing the costs of employee well-being onto taxpayers.
- Sue the employer and/or individual(s) in violation of this Act directly for economic, compensatory, and/or punitive damages and attorney’s fees. Employees can also sue criminally and choose to anonymously publicly disclose the case outcome, removing employers’ ability to silence them with non-disclosure agreements.
- It requires employers to acknowledge, monitor, detect, prevent, discourage, and adequately address incidences of psychological abuse. Employers will no longer be allowed to sweep abuse at work under the rug and pretend they’re following protocol while ignoring abuse or retaliating to avoid liability. They’ll be required to:
- Adopt and implement policies and training
- Conduct an annual anonymous workplace climate survey to monitor the prevalence of abuse in their workplaces
- Start third-party investigations within five business days and complete them within 30
- Take responsibility if the outcome favors the targeted employee, including minimally issuing an apology, reinstating work, and coaching, counseling, or disciplining the employee who engages in toxic conduct. Discipline may include removing supervisory duties or termination.
- It doesn’t pretend this issue is only an individual one. It also goes 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. It calls 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.
Workers deserve psychologically safe work environments.
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, suicide ideation and suicide itself.
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 one of us. Hope is abandoned over time when bullies are not deterred. Abandonment by coworkers who don't want to lose their job or become the next target can lead to loneliness and despair. The natural human stress response is provoked to the breaking point. It is inhumane.
Here's who workplace abuse and mobbing impact:
Anywhere from 30-90% of US workers are either targets or bystanders. Targets suffer significant mental, emotional, and physical health harm. There's also a ripple effect on witnesses and families. There's more: targets of workplace bullying are often women, Black workers, Latinx workers, workers over 40, the LBGTQ community 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. Higher-ups, cashing exorbitantly large paychecks are ill-advised legally (typically by one of the highest paid employees) to ignore complaints of psychological abuse and then proliferate the abusive behavior, through willful blindness and deafness to push the targeted employees out of their jobs, nose blind to the stench of human carnage. 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. Unemployed targeted employees are also left uninsured at a time of grave injury. Their health has deteriorated to a point where treatment expenses are far greater than intervention would have been. This bill would incentivize employers to address employee well-being and stop the extrapolation of costs to the US taxpayer. Research shows there's ZERO evidence to support targeted employees brought on the abuse. In fact, evidence shows the opposite. Targeted employees are high performing, highly ethical employees whose competence poses a threat to their low performing, low ethical co-workers or bosses. Research shows that the bully's motivation is an ego-driven control move that's about abuse of power and hiding their own inadequacies.
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. We don’t leave environmental pollution to the discretion of CEOs. So why do we leave psychological safety up to CEOs — when CEOs have a long history of leading in ways that serve neither their employees nor the public but rather the entity's self-interest.
How the WPSA will solve the problem
The WPSA will protect an employee's basic human rights including an inherent human right to dignity at work by prohibiting all forms of psychological abuse in the U.S. workplace. It provides a comprehensive understanding of both workplace bullying and workplace mobbing.
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 and exploit it willfully to employee detriment. The bill will fill that gap in the law. 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. 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 acknowledge, prevent, monitor, dissuade and adequately address psychological abuse in the work environment.
Employers need incentive to change. An effective bill must require employers to adopt all necessary steps to eliminate workplace bullying and organizational mobbing. Failure to do so must expose employers to meaningful penalties. Established defenses have not been effective. 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 targeted and victimized employees to prove the bully’s intent or the employer's willful negligence. WPSA does not require targeted and victimized employees of bullying and/or mobbing to prove intent.
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 toxic work environment or the psychological abuse itself is enough of a harm to have a cognizable claim. 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 bill must account for this lack of access. Governmental agencies with enforcement and oversight are necessary. WPSA would assure targets several paths to remedies including access to a state and agency with enforcement power and private litigation should they choose that route.
U.S. workers deserve safe work environments free of all forms of abuse - including psychological abuse.