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Susan Harthill Professor of Law Florida Coastal School of Law

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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


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