Should We Be Creating a New Anti-Bullying Cause of Action
Check out my first blog post on the Forbes.com legal blog, On the Docket, New York Anti-Bullying Law a Big Bad Idea.
I know, opposing a law that seeks to prevent workplace bullying is like criticizing mom and apple pie. Still. More workplace litigation??? And why isn't the existing cause of action for the intentional infliction of emotional distress a perfectly good alternative for anyone who's truly "severely" damaged by "outrageous" conduct that goes beyond the bounds of human civility?
One of the great benefits of posting on this topic over at Forbes.com is the number of comments it generates. Not because it insures "hits" but because it engages a far larger community in a constructive multilogue on an issue of genuine and important public interest. Here's an excerpt:
According to a post in the Wall Street Journal Law Blog yesterday -- For Businesses, Bully Lawsuits May Pose New Threat -- New York's state Senate has passed a surprisingly bipartisan workplace anti-bullying law.
According to the Journal, the law would "allow workers who've been physically, psychologically or economically abused while on the job to file charges against their employers in civil court."
Economically abused????? The mind boggles.
The bill defines "bullying" broadly as the "repeated use of derogatory remarks, insults and epithets" that the (mythical and chronically overly sensitive) "reasonable person" would "find threatening, intimidating or humiliating."
Let's give this proposal a second thought, particularly in the context of legal practice. We lawyers do endeavor to "keep calm and carry on." We have been known, however, to push ourselves and to be pushed past our tempers' limits. We're human. We're under a lot of pressure. And we're fallible.
Read more here.
Comments (2)
Read through and enter the discussion by using the form at the endJill - May 28, 2010 1:49 PM
Yes, economic abuse is definitely a part of this as most "targets" lose their jobs or are reassigned to lower lever, lower pay positions. I lost my job to bullying and was denied unemployment benefits in the appeal process. I had to take FMLA/disability caused by this abusive work environment. The devastating effects are the same as what school children experience but as adults, we are faced with the negative economic implications as well. We either need to get this bill in place on the Federal level or change some existing bills to allow for this harrassment to apply to all employees, not just those in a protected class.
Vickie Pynchon - May 28, 2010 2:19 PM
Jill,
Thanks for sharing your story. Terrible.
I do wonder, however, why the tort of intentional infliction of emotional distress is not available as a remedy. I agree with you that harassment causing severe emotional distress should be actionable and I believe it already is. My concern is that the courts have grappled with, and crafted the law about, what type of "bullying" conduct is actionable across all public and private domains for the past 50 or so years. If bullying laws dilute the requirements for bringing litigation for emotional damage, I think we're walking down a path that will further burden the workplace for everyone without significantly improving workplace conditions for workers.
Thanks for explaining the "economic" harassment piece of this for me. I believe the "emotional distress" causes of action also include remedies for economic harm accompanying the bullying itself. Demotions and firings motivated by a supervisor's malicious intent should also be covered by the torts of interference with contract and prospective economic damage.
I do believe that limiting legal remedies to protected classes of people has caused divisiveness among protected and unprotected classes which harms our social interactions on all levels - workplace, community, politics and culture. When people with justifiable grievances are forced to contort their claims to "fit" existing discrimination causes of action, the entire legal enterprise of protecting employees' interests in continued, harassment-free work, begins to appear frivolous.
I'd support something like a Uniform Employment Code for the American workplace similar to the Uniform Commercial Code that sets standards for the relationships between and among commercial enterprises.
It's a big problem requiring a systemic solution. I'm afraid that adding more legal remedies to churn into the inefficient adversarial system is not the systemic remedy we require as we move further into the 21st Century.