1. Susan Harthill Professor of Law Florida Coastal School of Law
Workplace Bullying
Susan Harthill
Professor of Law
Florida Coastal School of Law

2. Outline Workplace bullying Existing U.S. laws
definitions, prevalence, costs
Existing U.S. laws
Focus on OSHA
Shortcomings and potential solutions
European, Canadian & Australian Law Reforms
Susan Harthill

3. 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

4. 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

5. 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

6. Prevalence (U.S.) WBI 2010 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

7. Prevalence (U.K.) UK
in 10 workers bullied in the last 6 months
Hoel & Cooper (2000)
% of British workers reported being bullied or harassed at work in the past 2 years
Grainger & Fitzner (DTI 2007)
Susan Harthill

8. Costs
Individual
Organization
Society
Susan Harthill

9. 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

10. 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

11. 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

12. No U.S. laws currently provide recourse for targets of workplace bullying
Susan Harthill

13. HWB - Florida 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

14. FL HB 149: Findings/purpose
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

15. The OSH Act, OSH Administration and NIOSH

16. OSHA - Purposes
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

17. OSHA – Findings 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

18. OSHA § 5(a)(1) – the general duty clause
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 harm to his employees
Susan Harthill

19. OSHA § 5(a)(2) – the compliance clause
Each employer shall comply with occupational safety and health standards promulgated under this Act.
Susan Harthill

20. OSHA – shortcomings?
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

21. OHSA – potential? New Governance principles – the third way: Focus on:
Role of the OSH Administration
Role of NIOSH
Focus on:
Costs of workplace bullying
Purposes of OHSA
Comparative law
Susan Harthill

22. Comparative Law – A Risky Undertaking
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

23. Comparative Perspective
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

24. Sweden 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

25. Norway 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

26. Canada
Federal efforts
Saskatchewan
Ontario
(Quebec)
Susan Harthill

27. Australia 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

28. U.K. – a hybrid approach 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

29. Lessons for U.S.
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

30. The OSH model may have a place in the U. S
The OSH model may have a place in the U.S. development of workplace bullying law
Awareness is a worthy goal
Organizational problem v. individual problem
But, OSH law should be an integral part of a holistic approach
Susan Harthill

31. DISCUSSION