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Workplace Bullying. Susan Harthill Professor of Law Florida Coastal School of Law. Outline. Workplace bullying definitions, prevalence, costs Existing U.S. laws Focus on OSHA Shortcomings and potential solutions European, Canadian & Australian Law Reforms. Workplace Bullying Defined.

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Workplace bullying

Workplace Bullying

Susan Harthill

Professor of Law

Florida Coastal School of Law


Outline
Outline

  • Workplace bullying

    • definitions, prevalence, costs

  • Existing U.S. laws

    • Focus on OSHA

    • Shortcomings and potential solutions

  • European, Canadian & Australian Law Reforms

Susan Harthill


Workplace bullying defined
Workplace Bullying Defined

  • Repeated offensive behavior through vindictive, cruel, malicious or humiliating attempts to undermine an individual or group of employees.

  • Range of behavior, e.g., ostracism, ridiculing, shouting and verbal abuse.

Susan Harthill


Helen green v deutsche bank
Helen Green v. Deutsche Bank

  • burst out laughing when she walked past

  • made crude and lewd remarks,

  • moved her papers, hid her mail, removed her from document circulation lists,

  • ignored and excluded her,

  • undermined her and increased her workload.

Susan Harthill


Helen green
Helen Green

  • developed a major depressive disorder

  • taken to hospital and put on suicide watch

  • suffered a nervous breakdown

  • ultimately unable to return to work.

  • There ought to be a law against this…is there?

Susan Harthill


Prevalence u s
Prevalence (U.S.)

  • US (Employment Law Alliance 2007):

    • 44% of workers had been bullied

    • 64% believe an abused worker should have the right to sue to recover damages

  • WBI 2010

    • 35% of adult Americans reported being bullied now or at sometime in their careers

    • 15% witness it

Susan Harthill


Prevalence u k
Prevalence (U.K.)

  • UK

    • 2000 - 1 in 10 workers bullied in the last 6 months

      • Hoel & Cooper (2000)

    • 2007 -3.8% of British workers reported being bullied or harassed at work in the past 2 years

      • Grainger & Fitzner (DTI 2007)

Susan Harthill


Costs
Costs

  • Individual

  • Organization

  • Society

Susan Harthill


Stress related physical health complications wbi 2007
Stress-Related Physical Health Complications (WBI 2007)

  • Cardiovascular problems: hypertension, strokes, heart attacks

  • Adverse Neurological changes: neurotransmitter disruption, hippocampus shrinkage

  • Immunological impairment: more frequent infections of greater severity

  • Fibromyalgia, Chronic Fatigue Syndrome

Susan Harthill


Psychological emotional injuries wbi 2007
Psychological/Emotional Injuries (WBI 2007)

  • Debilitating Anxiety, Panic Attacks (>80%)

  • Clinical Depression: new to person or exacerbated condition previously controlled (39%)

  • Post-traumatic Stress (PTSD) from deliberate human-inflicted abuse (30% of targeted women; 21% of men)

Susan Harthill


Economic costs wbi 2007
Economic Costs (WBI 2007)

  • Lost ability to be left alone to do the once-"loved job”

  • Forced to transfer from loved job, often a punitive transfer (13%)

  • Constructively discharged without reasonable cause (24%)

  • Target quits to reverse decline in health and sanity (40%)

Susan Harthill



Hwb florida
HWB - Florida workplace bullying

  • HB 149(Rep. Daphne Campbell)

    • "Safe Work Environment Act."

    • Covers both public and private sector

  • SB 308(Sen. Oscar Braynon, II)

    • “Abusive Workplace Environment Act.“

    • Protects only public employees

      • state agencies, counties, municipalities, political subdivision, school district, community college or state university

Susan Harthill


Fl hb 149 findings purpose
FL HB 149: Findings/purpose workplace bullying

  • Section 2(c): Workplace bullying and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder.

Susan Harthill


OSHA workplace bullying

The OSH Act, OSH Administration and NIOSH


Osha purposes
OSHA - Purposes workplace bullying

  • OSHA § 1:

  • “To assure safe and healthful working conditions for working men and women … by providing for research, information, education, and training in the field of occupational safety and health . . .”

Susan Harthill


Osha findings
OSHA – Findings workplace bullying

  • OSHA § 2(a):

  • “[P]ersonal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.”

Susan Harthill


Osha 5 a 1 the general duty clause
OSHA § 5(a)(1) – the general duty clause workplace bullying

  • Each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harmto his employees

Susan Harthill


Osha 5 a 2 the compliance clause
OSHA § 5(a)(2) – the compliance clause workplace bullying

  • Each employer . . . shall comply with occupational safety and health standards promulgated under this Act.

Susan Harthill


Osha shortcomings
OSHA – shortcomings? workplace bullying

  • OSH Act = is it a “toothless tiger” or an “onerous ogre” (David Weil)?

  • Physical harm required under general duty clause

  • Enforcement – no private cause of action

  • Penalties - limited

  • Susan Harthill


    Ohsa potential
    OHSA – potential? workplace bullying

    • New Governance principles – the third way:

      • Role of the OSH Administration

      • Role of NIOSH

    • Focus on:

      • Costs of workplace bullying

      • Purposes of OHSA

      • Comparative law

    Susan Harthill


    Comparative law a risky undertaking
    Comparative Law – A Risky Undertaking workplace bullying

    • Pitfalls of comparative law generally

      • Differences in culture, politics, development of law

    • Pitfalls of comparative workplace bullying law

      • European dignitarian v. U.S. discrimination models of harassment law

      • But what about an “OSH” model?

    Susan Harthill


    Comparative perspective
    Comparative Perspective workplace bullying

    • ILO

      • Studies focus on violence (DiMartino 1998/2000)

    • Approaches (Einarsen & Hoel):

      • Use existing law or torts, non-OSH

        • UK

      • New laws

        • France

      • Amend OSH laws

        • Finland, Norway, Sweden, Australia, Canada

    Susan Harthill


    Sweden
    Sweden workplace bullying

    • Widely recognized as the leading country on workplace bullying

    • Part of the OSH law

    • Shortcomings recently identified by Einarsen & Hoel

      • Comparable to shortcomings of the US OSHA regulatory apparatus

    Susan Harthill


    Norway
    Norway workplace bullying

    • 2001 Inclusive Workplace Agreement

      • Focusing responsibility on the workplace for reducing the flow of workers into disability benefits, focusing on reducing sickness absence

    • 2004 anti-bullying campaign was part of this IW-Agreement

    Susan Harthill


    Canada
    Canada workplace bullying

    • Federal efforts

    • Saskatchewan

    • Ontario

    • (Quebec)

    Susan Harthill


    Australia
    Australia workplace bullying

    • State OSH laws include mental health/injury

    • Some states appear to be specifically addressing the issue. Examples:

      • Victoria - Proposed Code of Practice for the Prevention of Bullying and Violence in the Workplace

      • Queensland - Workplace Bullying Taskforce, Workplace Bullying: Issues Paper (2001)

    Susan Harthill


    U k a hybrid approach
    U.K. – a hybrid approach workplace bullying

    • Existing legislation

      • Protection from Harassment Act

    • Existing torts/common law principles

      • vicarious liability for violations of PHA

    • Health and Safety laws/regulations and HSE management standards

      • Focus on STRESS v. bullying

    • Self-regulation and partnerships

    Susan Harthill


    Lessons for u s
    Lessons for U.S. workplace bullying

    • The distinction between the European “dignitarian” model v. U.S. “discrimination” model of harassment laws is not a complete picture

    • The “OSH” model must be taken into account when comparing U.S. and other countries

      • But must also apply new governance principles

    Susan Harthill


    Susan Harthill


    DISCUSSION workplace bullying law


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