St. John's Law Review

Volume 89 Number 2 Volume 89, Summer/Fall 2015, Article 7 Numbers 2 & 3

Fifty Years After the Passage of Title VII: Is it Time for the Government to Use the Bully Pulpit to Enact a Status-Blind Harassment Statute?

Marcia L. Narine

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1 3/29/2016 TITLE VII: IS IT TIME FOR THE TIME FOR VII: IS IT TITLE ARINE Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981). (5th Cir. 1981). 1186 F.2d 1181, v. City of Killeen, 654 Jackson protects against discrimination, VII, Civil Rights Act of 1964, Title The to be subjected must an individual claim, hostile environment on a To prevail Professor Marcia Narine is an Assistant Professor at St. Thomas University University at St. Thomas Professor Assistant an is Narine Marcia Professor Title VII of the Civil Rights Act of 1964 is a powerful weapon Title VII is not a shield against harsh treatment at the the at harsh treatment against a shield not is VII Title disparately harshness of instances in only protects it workplace; distributed. FIFTY YEARS AFTER THE PASSAGE OF PASSAGE THE YEARS AFTER FIFTY 1 2 3 † M K TO ENACT A STATUS-BLIND HARASSMENT A STATUS-BLIND HARASSMENT TO ENACT GOVERNMENT TO USE THE BULLY PULPIT BULLY TO USE THE GOVERNMENT to reaching direct or tangible employment actions involving actions involving employment to reaching direct or tangible and demotion, it canhiring, termination, promotion, also protect working environment—created to a hostile subjected employees by unwelcome conduct basis of race, gender,on the color, religion, pervasive. severe or origin that is sufficiently or national religion. 42 U.S.C. § 2000e-2(a)(1) (2012). FINAL_N harassment, and retaliation based on race, color, national origin, gender, and origin, gender, color, national on race, based retaliation and harassment, conduct the group, and a protected in membership on based conduct unwelcome of the the conditions alters that it pervasive and severe sufficiently so must be School of Law. She worked as a management-side employment lawyer for fifteen employment School of Law. She worked as a management-side of Labor the Secretary by 2012 in appointed and was academia years before joining to thank I would like Committee. Advisory Protection Whistleblower to serve on the comments insightful Greene for their and Wendy Ray, Nancy Levit, Dean Douglas Marc-Tiroc Kathy Cerminara, Lawson, Dean Tamara as well as drafts, on early the South during input for their other participants and Gonzalez, Keith Rizzardi, dedicated to thank my I would like Finally, Workshop. Ideas Developing Florida drafting hard work and Behm for their Erica and Catala Maria assistants research research for their Lecusay Kathryn and Cardozo, Gregg Rock, Lizet efforts and assistance. against harassment, discrimination, and retaliation.against harassment, discrimination, C Y 37692-stj_89-2-3 Sheet No. 117 Side A 04/08/2016 13:04:55 A 04/08/2016 117 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 117 Side B 04/08/2016 13:04:55

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, U.S. the 2013 United the 2013 United

5 , The university 8 89:621 [Vol. This Article proposes some proposes This Article 4 , 133 S. Ct. 2434 (No. 11-556). Vance http://www.eeoc.gov/facts/qanda.html (last modified modified (last http://www.eeoc.gov/facts/qanda.html

, ST. JOHN’S ST. JOHN’S REVIEW LAW This behavior, which lasted for over a year, This behavior, which lasted for 7 Vance v. Ball State University OMMISSION C 3/29/2016

9 at 2440. at 7.

. ARINE Title VII applies to employers with fifteen or more employees. employees. with fifteen or more to employers VII applies Title 133 S. Ct. 2434 (2013). Id at 6–8, Brief for Petitioner Id. Id. Consider Vance acknowledged that the that she feared were coworkers 4 5 6 7 8 9 PPORTUNITY PPORTUNITY compliance officer tasked Vance’s supervisor with investigating compliance officer tasked Vance’s who, in an affront toher complaints—the same supervisor upon their first shake her hand Vance’s dignity, had refused to meeting. solutions to one of the gaps in current Title VII jurisprudence. current Title VII jurisprudence. gaps in of the solutions to one individual’s employment, and creates an abusive working environment. environment. working abusive an creates and employment, individual’s O 622 622 jurisdictional of its because Title VII, when times, however, are who feels an employee cannot protect limits, and definitional does not Title VII workplace. Further, in an abusive trapped classes protected of the are not members employees who apply to too few employers with who work for those above or mentioned by to be covered employees the law. FINAL_N Laws Prohibiting Job Discrimination Questions and Answers and Questions Job Discrimination Laws Prohibiting Maetta Vance worked as a catering assistant in the kitchen at worked as a catering assistant Maetta Vance Ball State University among other things, that, and alleged, slurs calling her coworkers made racial during her tenure, “Buckwheat,” “Sambo,” taunted and “nigger,” her about a family in the Ku Klux member’s membership a Klan, cornered her in threatening manner in an elevator, called her a “monkey” on the led to a disciplinary same day that Vance’s complaints up, write and pans around her, and stared “menacingly” at slammed pots her in the kitchen. led to such a state of fear that Vance sought psychiatric a state of fear that led to such anxiety. treatment for sleeplessness and States Supreme Court decision limiting the definition of Court decision limiting the States Supreme a environment case. a race-based hostile work supervisor in Nov. 21, 2009). not supervisors.of them Still, she filed suit claiming that one had created a racially-hostile work environment and that Ball the coworker had the power to control State was liable because her daily work activities, thus acting as a “supervisor” under Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 37692-stj_89-2-3 Sheet No. 117 Side B 04/08/2016 13:04:55 B 04/08/2016 117 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 118 Side A 04/08/2016 13:04:55

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Burlington

EPARTMENT EPARTMENT 623 623 , U.S. D , 133 S. Ct at 2439. See generally Vance , 22 S. L.J. 1, 3–4 (2012) Burlington Indus., Inc. Indus., v. Burlington

See See http://www.bls.gov/news.release/ Legislating “Nice”: Analysis and

case—the issue of workplace Vance Vance v. Ball State Univ., No 1:06-CV-1452- Univ., No v. Ball State Vance See (Jan. 23, 2015), ory harassment providedory harassment one.

, the Supreme Court adopted a narrow, narrow, a adopted Court Supreme , the . TAT Donald E. et al., Sanders S under any not qualify as a supervisor would

Vance . AB L see also Not only should Congress redefine “supervisor,” Vance STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 13 In 3/29/2016 , 133 S. Ct. at 2439. Tangible employment actions include termination, termination, include actions employment Tangible 2439. Ct. at S. , 133 Fair Lilly Ledbetter dissenting); (Ginsburg, J., Ct. at 2465–66 S. , 133 10 Economic News Release: Union Members Summary Release: Union News Economic , 524 U.S. 742; Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 524 U.S. 775 Raton, of Boca City U.S. 742; Faragher v. , 524

case defined supervisor because neither of the Court’s seminal cases cases seminal Court’s neither of the because supervisor defined case UREAU See ARINE B The appropriate definition of a supervisor is beyond the scope of this Article. Article. of this scope the beyond is a supervisor of definition appropriate The In the lower court, Vance also alleged discrimination and harassment but but harassment and discrimination alleged also Vance In the lower court, Vance Vance to of workers belong percent eleven approximately States, In the United This ArticleCongress a blueprint for how provides can

Vance 14 10 11 12 13 .: M K AB outlining liability for supervis Ellerth, 524 U.S. 742, 761 (1998). Ellerth, 524 U.S. Indus., Inc. a in as a supervisor of who qualifies the question noted that Alito Justice cases. after those two open case remained harassment demotion, and reassignment to less desirable duties. duties. desirable less to reassignment and demotion, outdated view of the workplace by holding that a supervisor is that a supervisor holding by view of the workplace outdated has the powerone who to action.” “tangible employment take Assessment of Proposed Workplace Bullying Prohibitions Bullying of Proposed Workplace Assessment pressures of because bullying” for “primed is workplace American the (arguing that use of contingent the increased after layoffs, to do more with less on managers proximity in close employees places service sector, which rise of the workers, the rates). membership union with each other, and declining those claims were not at issue at the Supreme Court level. The district court district The level. Court at the Supreme were not at issue those claims not was alleged conduct complaint because the harassment the dismissed or pervasive. severe sufficiently 2008 U.S. Dist. LEXIS 69288, SEB-JMS, (S.D. Ind. Sept. 10, 2008). at *37–38 of 1991, Act Rights Civil 123 Stat. 5; 2(1), 111-2, sec. No. Pub. L. of 2009, Act Pay 105 Stat. Pub. L. No. 102-166, 1071. L union2.nr0.htm; 2015] VII. Title FINAL_N but Congress should also consider a relatedbut Congress should also consider underlying factor that was not raised in the The dissent’s view, thatThe dissent’s a supervisor is a person with authority to with the is more in line daily work life, a subordinate’s control today. employees work which many the way in of realities Writing for Justice Ginsburgthe dissent, agreed that the alleged harasser in shedefinition; however, that suggested Congress redress the did with the Lilly protections to workers, as it wrongs to restore Pay Act Ledbetter Fair the Civil Rights Act of 1991. of 2009 and The unions. unions. accept Justice Ginsburg’s to protect challenge workers, when employees precarious economic times particularly in jobs and in an cannot easily switch era in which the vast majority bargaining collective the protection of a not have do of workers agreement. C Y 37692-stj_89-2-3 Sheet No. 118 Side A 04/08/2016 13:04:55 A 04/08/2016 118 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 118 Side B 04/08/2016 13:04:55

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EALTHY NST I , H ORKPLACE ULLYING ULLYING W B 89:621 [Vol. EALTHY ORKPLACE W

, H , Workplace Bullying—What Employers Need to Workplace

19 The problem is so serious that legislators The problem The problem extends far The problem the reach beyond 18 ST. JOHN’S ST. JOHN’S REVIEW LAW (June 30, 2014), http://www.polsinelli.com/~/media/ 17

Puerto Rico: 2014 Legislative Session News Session Legislative Rico: 2014 Puerto Id. Jay M. Dade, , http://www.healthyworkplacebill.org/states/pr/pr.php (last visited , http://www.healthyworkplacebill.org/states/pr/pr.php ILL If workplace bullying of cause a viable were action, B 3/29/2016 15 see also OLSINELLI OLSINELLI ; ARINE State of the Union: State Activity Union: State of the State The courts have been clear that Title VII does not cover this behavior. behavior. this not cover does VII Title clear that been have courts The of this purposes for the and, Bills, Workplace Healthy as known are These Bullying Survey U.S. Workplace 2014 WBI Id. , P

19 15 16 17 18 ORKPLACE Podcasts%20Inside%20Law/Springfield/PodcastFinalBullying.mp3 (providing advice advice (providing Podcasts%20Inside%20Law/Springfield/PodcastFinalBullying.mp3 the considered have states that of number with the inaccurate is Dade to employers). with correspondence in e-mail as he acknowledged Bill (“HWB”) Healthy Workplace (on file 14:18 EST) M. Dade to author (July 8, 2014, from Jay E-mail the author. with author). Feb. 6, 2015). of Title VII—indeed, most bullying is same sex—and only twenty is same sex—and most bullying of Title VII—indeed, percent of bullying cases muster as cognizable could also pass harassment claims. W 624 624 bullying. FINAL_N http://workplacebullying.org/multi/pdf/WBI-2014-US-Survey.pdf (last visited Aug. 9, http://workplacebullying.org/multi/pdf/WBI-2014-US-Survey.pdf claim to workers American million thirty-seven while that notes survey 2015). The or have victims been have either million conduct,” 65.6 to “abusive subject have been witnessed the abuse. Vance is just one of an estimated thirty-seven million is just oneVance an estimated of million thirty-seven this U.S. workforce—of percent of the victims—twenty-seven pervasive problem. Article, they are called antibullying laws. This Article proposes a state remedy remedy a state proposes Article laws. This antibullying they are called Article, of the one-half over because and difficult, be too would law a federal passing because bills. introduced states have already Know Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“Title VII does does VII Servs., Inc., 523 U.S. 75, Oncale v. Sundowner Offshore 80 (1998) (“Title . . . .”). in the workplace harassment verbal or physical all not prohibit Maetta Vance likely would have prevailed in a state that state that in a have prevailed Vance likely would Maetta entitled to her added that claim could have she relief because her to claims. environment and hostile work discrimination federal in twenty-eight states, Puerto Rico, and the U.S. Virgin states, Puerto Rico, and the in twenty-eight Islands introduced in the workplace and providebills to ban bullying victims.remedies for its http://www.healthyworkplacebill.org/states.php (last visited Aug. 9, 2015). These http://www.healthyworkplacebill.org/states.php Puerto but legislature, of one chamber of the state make it out not often do bills then the and signature, desk for way to the governor’s all the advanced bill Rico’s it. governor vetoed 37692-stj_89-2-3 Sheet No. 118 Side B 04/08/2016 13:04:55 B 04/08/2016 118 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 119 Side A 04/08/2016 13:04:55

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EALTHY , H available at available at available 625 625 ORKPLACE W ORKPLACE W The HWB does 24 Tennessee’s law Tennessee’s drafters The bill’s 20 21 EALTHY , H EALTHY , H That language is similar to the the to similar is language That 22 First State Workplace Bullying Law Has Few Has Law Bullying Workplace State First Workplace Bullying Bill Set To Go toLawmakers Tennessee Workplace (“HWB”), which is discussed in more detail in Adam Rubenfire, Rubenfire, Adam 23 http://www.healthyworkplacebill.org/about.php (last visited Aug. http://www.healthyworkplacebill.org/about.php (June 20, 2014, 9:36 AM), http://blogs.wsj.com/atwork/2014/06/20/ (June 20, 2014, 9:36 AM), http://blogs.wsj.com/atwork/2014/06/20/

See , J.

STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND . ILL T B 3/29/2016 S ALL ARINE Tennessee: 2014 State Activity State Tennessee: 2014 Gen. Assemb., Reg. Sess. (Tenn. 2014), H.B. 1981, 108th History of the U.S. Legislative Campaign The Movement: Bill Workplace Healthy the Quick Facts About H.B. 1981, 108th Gen. Assemb., Reg. Sess. (Tenn. 2014), Sess. (Tenn. 2014), Gen. Assemb., Reg. H.B. 1981, 108th Legislators in Tennessee and other states model their other states model their Tennessee and Legislators in Tennessee passed the first antibullying the first passed Tennessee 2014, in June law , W 21 22 23 24 20 ORKPLACE M K Part III. In addition to language similar to the Tennessee bill, who feel bullied must showunder Yamada’s proposal, employees health medical or mental evidence through a licensed practitioner that harmed the abusive or physical behavior mental there was intent to cause pain. that health and 9, 2015). http://www.healthyworkplacebill.org/bill.php (last visited Aug. 9, 2015). visited (last http://www.healthyworkplacebill.org/bill.php bullying-bill-set-to-go-to-tennessee-lawmakers/. bullying-bill-set-to-go-to-tennessee-lawmakers/. http://www.capitol.tn.gov/Bills/108/Bill/HB1981.pdf. W http://www.capitol.tn.gov/Bills/108/Bill/HB1981.pdf. The law provides an incentive incentive provides an The law http://www.capitol.tn.gov/Bills/108/Bill/HB1981.pdf. in the conduct abusive prevent policy to model the to adopt agencies sector for public advisory 1, 2015, by the Tennessee before March created which will be workplace, create may employers Government relations. intergovernmental on commission addressing and recognizing in assists employers (1) if the policy policy their own policy will receive a create who Those retaliation. prevents (2) and abusive conduct the new favors lawsuits alleging bullying. But not everyone immunity from personal face also employees sector public individual Although law. Tennessee private that it excludes fact the bemoan the bill draft who helped those liability, sector employers. Fans 10:30 June 20, 2014, (last updated first-state-workplace-bullying-law-has-few-fans/ AM); AprilThompson, PM), http://wreg.com/2014/03/24/work-place- 6:28 24, 2014, (Mar. WREG-TV risk of cardiovascular disease and symptoms disease and risk of cardiovascular with consistent post-traumatic stress disorder.” bills that have not been passed. verbiage in the Professor David language on Yamada’s legislations’ Healthy Workplace Bill 2015] threats, verbal abuse, as “repeated conduct abusive defines or work humiliation intimidation, sabotage.” out that almostpointed citizens have of Tennessee’s one-third “inflict which can harassment,” “health-endangering experienced feelings of upon targeted employees, including serious harm suicidal severe anxiety, depression, shame and humiliation, increased immune systems, hypertension, tendencies, impaired FINAL_N http://www.healthyworkplacebill.org/states/tn/tennessee.php (last visited Apr. 5, visited (last http://www.healthyworkplacebill.org/states/tn/tennessee.php 2015). but it only but it only sector protects public employees. C Y 37692-stj_89-2-3 Sheet No. 119 Side A 04/08/2016 13:04:55 A 04/08/2016 119 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 119 Side B 04/08/2016 13:04:55

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26 ST. JOHN’S ST. JOHN’S REVIEW LAW Victims seek Victims court with state in their remedies Incentives for the states could include federal monies 25

3/29/2016 30 and therapeutic jurisprudence, which the use encourages

Therapeutic Jurisprudence: An Overview An Jurisprudence: Therapeutic 27 ARINE Arbitrators are not recommended in this Article’s proposal because the the because proposal Article’s in this not recommended are Arbitrators them include policies that have antibullying many firms I discusses, As Part Id. See id. deeply is justice “procedural that explains Solum Lawrence Professor traditionally the as jurisprudence therapeutic defines Wexler David Professor This Article to the revisions proposes some builds upon and This Article a two-pronged also recommends incentive . 181, 183 (2004). 29 30 25 26 27 28 EV to or instead of filing suit, plaintiffs could avail themselves of a themselves of a filing suit, plaintiffs could avail to or instead of alternativenonmandatory resolution mechanism with dispute judges, mediators, and arbitrators specially trained who would kinds of cases. preside over these to subsidize training programs, mental health programs, either bench or jury trials. either bench action-guiding legal norms.” Lawrence B. Solum, B. Solum, Lawrence legal norms.” action-guiding R 626 626 any to enforce agencies antidiscrimination state require not the word does not use and, notably, of the law provisions “bullying.” FINAL_N HWB through called the statute harassment a status-blind Safety and in the Workplace Act (“SDWA”). Dignity Specifically, both procedural application of principles from it calls for the justice arbitration process may appear too overwhelming or formal for a plaintiff, or there for a plaintiff, or formal too overwhelming may appear process arbitration many However, employer. favors the the arbitrator that perception may be a contracts or handbooks employee in clauses arbitration mandatory have employers or panel. heard by an arbitrator may be these issues and, thus, which of conduct, codes or handbooks employee in policies antiharassment in their to hesitate may already employees a policy that some of effectiveness the minimizes use. entwined with the old and powerful idea that a process that guarantees rights of rights of that guarantees a process that idea powerful and the old with entwined of legitimate authority for the prerequisite essential is an participation meaningful B. David well-being. and life emotional on impact of the law’s area underappreciated Wexler, (2000). of the law as a mechanism for healing. of the law as a structure. Congress can and should address non-status-based providing incentives hostile work environments through for both the Potential incentives for the states and for private businesses. for those firms that volunteer toprivate sector include tax credits this Article proposes and a institute the provisions that internal stand-alone robust, effective for a requirement antibullying programany government for contractor or renew government bid on or eligible to subcontractor to be contracts. 37692-stj_89-2-3 Sheet No. 119 Side B 04/08/2016 13:04:55 B 04/08/2016 119 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 120 Side A 04/08/2016 13:04:55

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. , JILPT OMP , 32 C , 32 (2008); The Japan Inst. for Labour Policy & Training, Policy for Labour Inst. (2008); The Japan

STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 3/29/2016 198–99 ARINE

Due to space limitations, this Article does not provide a detailed analysis of analysis detailed a provide not does Article this limitations, space Due to You’ll Need More Than a Voltage Converter: Plugging European Workplace Workplace European Plugging Converter: Voltage a You’ll Need More Than L. 241, 242–43 (2003); Katherine Lippel, Katherine (2003); 242–43 L. 241, Part I of the Article describes the extent of bullying in of bullying Article describes the extent Part I of the

. 31 197,

M K UR Note, Outlet Bullying Laws into the Jurisprudential American E Overview International L. http://www.jil.go.jp/english/reports/documents/jilpt-reports/no.12.pdf. 2015] and mediators, and employers, schools for programs antibullying already state agencies that in the additional personnel hiring of did States that and harassment. discrimination address not pass funding. for the federal be eligiblewould not By legislation initiatives, Congress funding to be legislatures may spur and of both employees the interests in protecting innovative employers. bullying of and why the consequences American workplaces II briefly considersit a public health issue. Part justify labeling exploring approaches to workplace bullying, international (“EU”), European Union particularly the which considers the “dignity” of the in a number of laws; Quebec, worker Canada, safety model; legislation based on a workplace which has enacted and Australia,that which promulgated a law 2014took effect in investigationsthat established a tribunal to conduct address and common law procedures separate injunctive measures but uses for financial compensation. FINAL_N these laws but instead uses them as illustrations of the global perspective on this on this perspective global of the illustrations as them uses instead but laws these bullying, on legislation of international discussion comprehensive more For problem. Whitman, Q. James & S. Friedman Gabrielle see generally Dignity Versus Law: Discrimination of Harassment Transformation discusses why no versionthe bill has passed to date. of Part IV the HWB. to with revisions Finally, details a proposed solution States can not only that the United Part V concludes by asserting learn from other jurisdictions, but also that the federal to states and businesses to government can provide incentives workplace protections. bullying through status-blind eliminate Bullying and Harassment C Y 37692-stj_89-2-3 Sheet No. 120 Side A 04/08/2016 13:04:55 A 04/08/2016 120 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 120 Side B 04/08/2016 13:04:55

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Moreover, the stress from Moreover, the stress from 38 ORKPLACE 35 . 1250, 1263 (2010). . 1250, W T OF T OF ’ EV

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Workplace Bullying: A Global Health and Safety Issue Workplace Bullying: A Global Health and The Need for a Revitalized Regulatory Scheme To Address Scheme To Address Regulatory for a Revitalized The Need ST. JOHN’S ST. JOHN’S REVIEW LAW , 78 U. 3 (July 2012), http://ilera2012.wharton.upenn.edu/Refereed 2012), http://ilera2012.wharton.upenn.edu/Refereed 3 (July The WBI Website 2012 Instant Poll D—Impact of Workplace of Workplace Poll D—Impact 2012 Instant The WBI Website I. T

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. Between one-half and three-quarters of respondents of respondents Between one-half and three-quarters ROUP 3/29/2016 37 ED G F Workplace Bullying: Position Statement by the New Brunswick Advisory Advisory by the New Brunswick Statement Bullying: Position Workplace Susan Harthill, Harthill, Susan

(internal quotation mark omitted). mark omitted). quotation (internal , ARINE Stephen J. Romano et al., Stephen See Gary Namie, Id. Ellen Pinkos Cobb, Pinkos Ellen Id. See Victims, or targets some call them, can experience as The International Labor Organization Labor The International (“ILO”) defines 35 36 37 38 32 33 34 SOSCELES Response http://www2.gnb.ca/content/dam/gnb/Departments/eco-bce/WI-DQF/pdf/en/Workpl http://www2.gnb.ca/content/dam/gnb/Departments/eco-bce/WI-DQF/pdf/en/Workpl aceBullying.pdf. indicated that they suffered from disrupted sleep, insomnia, loss indicated that they suffered from swings, and pervasiveof concentration, mood Almost sadness. stress disorder diagnosis, and one-third reported a posttraumatic acute stress almost twenty percent had an diagnosis.disorder from hypertension or heart Sixty percent reported suffering experienced migraines; and about one-half palpitations; almost fatiguebowel syndrome, chronic one-third reported irritable syndrome, or sexual dysfunction. bullying itself can lead to workplace violence. to workplace lead bullying itself can further explains, “These behaviours would originate from would originate behaviours explains, “These further the organization. This at any level of customers, co-workers forms of harassment, bullying, would include all definition physical threats-assaults, intimidation [sic], intimidation, robbery and intrusive behaviours.” other as to label bullying a form of workplace violence. as to label bullying http://www.workplacebullying.org/multi/pdf/WBI-2012-IP-D.pdf. 628 628 FINAL_N significant physical and mental health ramifications. In one of targets reported a recent survey, one-half clinical depression diagnosis. Bureau of Investigation also lists bullying, along with stalking, lists bullying, along with stalking, also Bureau of Investigation among homicide, domestic violence, and physical assault, behaviors. workplace violence january/workplace-violence-prevention-readiness-and-response. january/workplace-violence-prevention-readiness-and-response. Bullying on Individuals’ Health I Status of Women the Council on Workplace Bullying in the United States: Harnessing the Federal Occupational Occupational Federal the Harnessing States: United in the Bullying Workplace Health Act and Safety Papers/CobbEllen.pdf (internal quotation mark omitted). mark (internal quotation Papers/CobbEllen.pdf bullying as “any incident in which a person is abused, threatened abused, person is a in which “any incident as bullying to their work.” relating in circumstances or assaulted 37692-stj_89-2-3 Sheet No. 120 Side B 04/08/2016 13:04:55 B 04/08/2016 120 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 121 Side A 04/08/2016 13:04:55

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. (Feb. 28, 2012), . (Feb. 28, 2012), supra , GMT M http://www.capitol.tn.gov/ ESOURCE R

. articles/pages/workplacebullying.aspx. articles/pages/workplacebullying.aspx. available at available UM H But voluntary even these policies Only three percent acknowledged Only three percent 43 42 Y FOR ’ Hispanics United of Buffalo, Inc., 359 N.L.R.B. 37 at N.L.R.B. 37 at Inc., 359 of Buffalo, United Hispanics OC , S Bullying in Schools: The Disconnect Between Empirical Empirical Between The Disconnect Bullying in Schools: see also . 355, 356–57, 374–75, (2013) (observing the lack of analysis by by lack of analysis the (2013) (observing 374–75, . 355, 356–57, Bystanders also suffer but often remain passive remain passive but often suffer also Bystanders EV 39

R STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND

45 Floor to Ceiling: How Setbacks and Challenges to the Anti-Bullying Anti-Bullying to the Challenges and Ceiling: How Setbacks Floor to 3/29/2016 L.

http://www.aabri.com/OC2012Manuscripts/OC12037.pdf. http://www.aabri.com/OC2012Manuscripts/OC12037.pdf. . Forty percent indicated that bullying was part of another policy. policy. was part of another bullying that indicated Forty percent Jerry Carbo, Exploring Solutions to Workplace Bullying to Workplace Solutions Exploring Jerry Carbo,

TS ARINE R Workplace Bullying Workplace Id. Id. See against has ruled workers and nonunion and union both protects The NLRB Results of the 2014 WBI U.S. Workplace Bullying Survey Bullying Results of the 2014 WBI U.S. Workplace Daniel B. Weddle,

. Bullying is four times more prevalent than illegal illegal than prevalent more times four is Bullying . 641, 649 (2004) (noting that in schools, bystanders views begin to coarsen as to coarsen bystanders views begin schools, that in (2004) (noting . 641, 649 IV 41 42 43 44 45 39 40 C M K

EV Research and Constitutional, Statutory, and Tort Duties To Supervise Tort Duties To and Statutory, Constitutional, and Research Tennessee law does not use the same figure but states that “this form of but not use the same figure does Tennessee law they blame the target or join in the bullying). target or join in the bullying). they blame the having a stand-alone policy. having a stand-alone for fear that the bully will turn that the bully for fear them. toward his attentions the NLRB and noting that some behavior that rises to protected activity under under to protected activity that rises the NLRB and noting that some behavior company under problematic be would Act Relations Labor National 7 of the section to stop it). power have no would employers that and policies 29 U.S.C. § 157 (2012); rule that an antibullying not implement could that the employer 3–4 (2012) (finding disciplined who employer an against ruling and NLRA the not consider did Kerri Facebook); on harassment of online complained a coworker after employees Lynn Stone, Bullying Wish To Ban Who to Employers Challenges Pose Movement & R http://www.shrm.org/research/surveyfindings/ Institute), Research Business and (on file with Academic manuscript) (unpublished at available mistreatment is more prevalent than sexual harassment.” H.B. 1981, 108th Gen. H.B. 1981, 108th harassment.” than sexual is more prevalent mistreatment Sess. (Tenn. 2014), Assemb., Reg. Bills/108/Bill/HB1981.pdf. 2015] FINAL_N One-half of human resources manager-respondents surveyed manager-respondents of human resources One-half in their workplaces. occurred that bullying admitted Notwithstanding what they of forty-four percent saw, no policy. respondents had another may pose legal backing without Stand-alone policies the from who have faced opposition problem for employers, antibullying Relations Board for enforcing National Labor provisions. employers who attempt to limit certain kinds of speech in the workplace. The NLRB in the workplace. certain kinds of speech attempt to limit who employers 7, which section under rights workers’ inhibit could policies these that reasons and bargaining the right other things, among to engage in collective provides, meeting with others to include could activities These activity. concerted protected protection.” or aid other “mutual for and conditions workplace discuss may not address the needs of the target, unless the needs of the may not address the policy meets claims. for legal needs by providing cover the organization’s harassment. C Y 37692-stj_89-2-3 Sheet No. 121 Side A 04/08/2016 13:04:55 A 04/08/2016 121 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 121 Side B 04/08/2016 13:04:55

M K PM PM

C Y HR

2:42 OOKS OOKS

, 43 U., 43 L Indeed, 48 OOLS FOR FOR OOLS T Although Although King v. Hillen, v. Hillen, King ORLD 47 W which promotes which promotes But see 50 L.J. 167, 168, 175 (2012) L.J. 167, 168, 175 89:621 [Vol.

. OW THE US TRATEGIES AND TRATEGIES AND H B S

: :

ORK W note 31, at 241–42 (comparing U.S. and U.S. (comparing at 241–42 31, note Bullying Statutes and EffectBullying Statutes the Potential

ULLYING B ARASSMENT supra supra NTREPRENEURIAL H AT ULLYING AT E

B . Workplace The American Association Psychological T 46 S TOP 41 (2009). ORAL Human Dignity and American Employment Law Employment American and Dignity Human ST. JOHN’S ST. JOHN’S REVIEW LAW , S HIO M ANIEL , 7 O D

The United States jurisprudence focuses more on A. , Daniel Calvin, , Daniel Calvin, 49 ROFESSIONALS . 523, 524–25 (internal quotation marks omitted) (tracing the concept of concept the (tracing marks omitted) quotation (internal 524–25 . 523, 3/29/2016 P EV Friedman & Whitman, & Whitman, Friedman at 42. R OBBING AND

ERESA ARINE See C. Yamada, David T Id. See, e.g. L. EGAL

Much of the rest of the world has tried to address workplace Much of the rest of the world has Finally, bullying also imposes a high cost on employers. By employers. cost on a high imposes also bullying Finally, . L 49 50 46 47 48 ICH II. M bullying to some extent. Although the concepts are not mutually States has always focused on remedying exclusive, the United muchpast discrimination, but not as on individual dignity in the workplace. AND

(explaining that bullying occurs in companies of all sizes and that the deterrent and that the deterrent of all sizes in companies occurs bullying that (explaining behavior). the effect of the law may be enough to prevent R 630 630 FINAL_N “dignity” from the Enlightenment to John Locke to the Framers of the Constitution Constitution of the Framers the Locke to John to Enlightenment the “dignity” from employment law). to modern frameworks a number of alternative and reviewing tangible forms of restoration through monetary damagestangible forms of restoration through rather intangibles such as the loss of than recognizing and restoring dignity. Accordingly, Professor Yamada has called for a “dignitarian” focus in the American workplace, European perspectives and explaining that European countries have a history of of history have a countries European that explaining and perspectives European of all workers). dignity to the class protected beyond looking 21 F.3d 1572, 1582 (Fed. Cir. 1994) (“The purpose of Title VII is not to import into into is not to import VII of Title purpose 1994) (“The Cir. 1582 (Fed. 21 F.3d 1572, law to liberate the but through of the community, the prejudices the workplace to thereby and of discrimination, influence the demeaning from workplace in employment.”). equality economic dignity and goals of human implement the on Small Business on Small many small businesses may lack human resources personnel, may lack human resources many small businesses training capacity,meaning grievance mechanisms, or internal protection than a similarly- may have even less the employee a larger firm. situated peer in bullying has a direct impact on the bottom line, the HWB does direct impact on the bottom line, bullying has a it even nor should exemption for small businesses not provide an margins. may have thinner profit though these entities claims that firms lose $300 billion in increased medical costs, increased medical $300 billion in firms lose claims that productivity absenteeism, charges, lost compensation workers’ stressors. and other due to bullying and turnover one estimate, employers incur $30,000 employers one estimate, costs for $100,000 in to employee. each bullied 37692-stj_89-2-3 Sheet No. 121 Side B 04/08/2016 13:04:55 B 04/08/2016 121 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 122 Side A 04/08/2016 13:04:55 PM PM

2:42

631 631 http://www.un.org/en/

53 3 (Jan. 15, 2013), available at available Some countries specifically Some countries ROSKAUER France, Belgium, and Spain France, Belgium, 52 54 , P For example, the EC Framework There is no specific definition for There is no 57 Bullying, Harassment and Stress in the Stress in and Bullying, Harassment 58

56 Denmark, Germany, Italy, Norway, and Sweden Denmark, Germany, 55 STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 3/29/2016

51 at 2. . at 525. ARINE Community Charter of Fundamental Social Rights of Workers 1989/19 of 8 of 1989/19 of Workers Rights Social Fundamental Charter of Community Union European A (EC). 1, 3 183) (L 2, 1989 § 89/391/EEC, Directive Council Id art. 1, U.N. Res. 217 (III)A, Rights, G.A. of Human Declaration Universal et al., Jerome Hartemann Id. Id. Id. Yamada does not call his proposed legislation an legislation proposed his call not Yamada does Although the countries’ legislations have differences,Although the countries’ legislations Many Europeanconcept of adopted the states have Union 57 58 51 52 53 54 55 56 M K use the word “dignity” in their constitutions. use the word “dignity” http://www.internationallaborlaw.com/files/2013/01/Bullying-Harassment-and- Stress-in-the-workplace-A-European-Perspective.pdf. use the term “mobbing.” Doc. A/RES/217(III) (Dec. 10, 1948), Doc. A/RES/217(III) Aug. 9, 2014). (last visited documents/udhr 2015] go that workplaces” responsible and socially productive, “healthy, hand with hand in private,“robust public, and non-profit sectors.” FINAL_N antibullying bill. “Bullying,” however,antibullying bill. word associated is the United the proposed legislation in Australia, with current or United States. Kingdom, and the Workplace—A European Perspective European Workplace—A health and satisfactory enjoy must worker Dec. 1989, art. 19, 1989 O.J. (19) (“Every Rights of Fundamental Charter environment.”); in his working safety conditions 083/02 of 30 March 2010, art. 31, 2010 O.J. (C 83) 389, 397 (“Every (EU) 2010/C safety health, or her his which respect conditions right to working the worker has 89/391/EEC, art. 5, 1989 O.J. (L 183) 1, 3 (EC) dignity.”); Council Directive and every in of workers health safety and the “ensure must employers that (explaining to the work” and conduct risk assessment). aspect related law that through achieve must EU member states a goal that the is directive (“EU”) date. EU that goal by a certain to enact to accomplish chooses the member state label it “moral harassment,” with Quebec calling it “psychological with Quebec calling label it “moral harassment,” harassment.” Directive 89/391/EECrelated employers’ obligations establishes to health and safety risks. discussed briefly below, the EU provides a framework regarding discussed briefly below, the EU workers’ rights and an obligation to protect the health, safety, is and dignity of workers, which from the onevery different that States. United exists in the “dignity” in the workplace because they more readily subscribe to more readily because they in the workplace “dignity” Human of Universal Declaration letter of the not the if the spirit, Rights, which free “All human beings are born specifically states, in dignity and rights.” and equal C Y 37692-stj_89-2-3 Sheet No. 122 Side A 04/08/2016 13:04:55 A 04/08/2016 122 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 122 Side B 04/08/2016 13:04:55 M K PM PM

C Y RADE 2:42 T

. Difference UR E

, note 13. note 13. note 58; Council However, EU law law EU However, ., http://www.usda- http://www.jil.go.jp/ http://europa.eu/eu- , http://ec.europa.eu/

, Id. supra , GRIC supra , A 89:621 [Vol. NION T ’ U Trade Unions Trade EP D OMMISSION

available at at available C

Unless a worker is one of Unless a worker . 61 UR , U.S. Other Other definitions include (last visited Aug. 9, 2015); Aug. 9, 2015); (last visited UROPEAN

59 , E 1, 1–2,

, E

60 at

Workplace Bullying and Harassment in the EU andEU in the and Harassment Bullying Workplace 62 June 2013, June

ST. JOHN’S ST. JOHN’S REVIEW LAW , Working Conditions EPORT R

See Regulations, Directives and Other Acts Directives See Regulations, ., http://www.worker-participation.eu/National-Industrial-Relations/ ., http://www.worker-participation.eu/National-Industrial-Relations/ 3/29/2016 Economic News Release: Union Members Summary News Release: Union Members Economic NST

I

ARINE , JILPT See Maarit Vartia-Väänänen, Maarit Vartia-Väänänen, Id. countries or more two within more employees 1,000 or employs If a business The EU countries are not monolithic, but they generally are not monolithic, but The EU countries In 1993, Sweden became the first country to implement country to implement became the first In 1993, Sweden 62 59 60 61 NION Directive 94/45/EC, arts. 2, 4, 1994 O.J. (L 254) 64, 66–67 (EC). Trade unions are unions are Trade (EC). 2, 4, 1994 O.J. (L 254) 64, 66–67 arts. Directive 94/45/EC, through than rather industries across operate and workers’ councils from different as such countries in unions belong to who employees of proportion The companies. is much while it percent, seventy is around Sweden, and Denmark Finland, countries such as France. percent—in lower—eight Across-Europe/Trade-Unions2/(language)/eng-GB (last visited Aug. 9, 2015). A Aug. 9, 2015). visited (last Across-Europe/Trade-Unions2/(language)/eng-GB Europe. in unions to belong employees of number decreasing has a number of requirements related to working conditions that restrict, among that restrict, to working conditions related of requirements has a number other things, layoffs. Finland english/reports/documents/jilpt-reports/no.12.pdf. english/reports/documents/jilpt-reports/no.12.pdf. social/main.jsp?catId=706&langId=en (last visited Aug. 9, 2015). visited (last social/main.jsp?catId=706&langId=en U regulations are binding law on every EU state as soon as they are passed. passed. are they as soon as state EU every on law binding are regulations Acts Directives and Other Regulations, regularly . . . and over a period of time”—typically six 632 six of time”—typically a period and over . in EU characteristics some common but the EU, in bullying . acts that at “negative include looking countries occur repeatedly, . regularly himself defending difficulty who has a person months—against a power imbalance. of because FINAL_N Between a Regulation, Directive and Decision and Directive a Regulation, Between the eleven percent of the eleven percent who belong to a union, American employees an employer can employed at-will, meaning that he is generally with or terminate him without cause the termination as long as the law. does not violate eu.org/eu-basics-questions/difference-between-a-regulation-directive-and-decision/ eu.org/eu-basics-questions/difference-between-a-regulation-directive-and-decision/ Dec. 7, 2014). (last modified law/decision-making/legal-acts/index_en.htm in the European Economic Area—twenty-seven out of the twenty-eight countries in out of the twenty-eight countries Area—twenty-seven Economic in the European has at least 150 business Norway—the and Lichtenstein, the Iceland, EU plus workers of the company’s 100 at least and of two EEA countries, in each employees works The one. establish must the business of a works council, creation request and between employees information and for consultation a vehicle provides council management. harassing, offending, socially excluding someone, or negatively negatively someone, or excluding offending, socially harassing, work tasks. affecting someone’s have strong unions or work councils.have strong unions legislation specifically outlawing bullying at work. Its legislation at work. Its legislation outlawing bullying legislation specifically also creates a duty for employers to promptly investigate, of bullying, as well asmediate, and address any instances mechanisms. Notably, the law preventative does not implement 37692-stj_89-2-3 Sheet No. 122 Side B 04/08/2016 13:04:55 B 04/08/2016 122 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 123 Side A 04/08/2016 13:04:55 . PM PM

EV R note note

2:42 The The

L.

63 (Nov. 15, . supra J. 225, 234 Y OMP ’ . 30, 30 (2010) 30 (2010) . 30, C

OL 633 633 P & IRECTOR

French law L D & ’

65 SYCHOL L. NT

I P .

, HR . AB RG L

. O

Shortcomings of Antibullying Antibullying of Shortcomings & ASTINGS OMP J. 109 (2010); Thomas, Thomas, J. 109 (2010); The Swedish Ordinance Against Against Ordinance Swedish The Y ORK ’ Although French moral Although French W 67 , 34 H OL

, 32 C P J.

3. .

&

UR L.

. Workplace Bullying as an Occupational Safety Safety Occupational an as Bullying Workplace AB .] art. L1152-1 (Fr.). For an excellent discussion of.] art. L1152-1 (Fr.). For an excellent discussion .] art. L1152-1 (Fr.). Article L1152-4 of the French of the French Article L1152-4 .] art. L1152-1 (Fr.). L , 19 E

. note 53, at Moral Harassment in the Workplace: French Law and and Law French Workplace: in the Moral Harassment OMP TRAV TRAV note 36, at 1254 (arguing that despite the criticisms of of the criticisms despite that (arguing 36, at 1254 note [C. [C. supra supra , 32 C supra Susan Harthill, Loïc Lerouge, Lerouge, Loïc

STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND Under French law, employers must “(1) establish[] internal policies policies internal establish[] must “(1) law, employers French Under

However, bullying may take place over as short of a may take place over as short However, bullying 3/29/2016 66 Id. see also Helge Hoel & Ståle Einarsen, Einarsen, & Ståle Hoel Helge at 3–4. French Law Prohibiting Bullying in the Workplace Law Prohibiting Bullying in French ODE DU TRAVAIL ODE DU TRAVAIL ODE DU TRAVAIL bans “moral harassment,” bans “moral acts defined as “repeated ARINE C Hartemann et al., Id. C See 64 France has specific laws prohibiting workplace bullying that bullying workplace prohibiting has specific laws France 65 66 67 64 63 M K 64. and Health Matter: A Comparative Analysis A Comparative Health Matter: and leading to a deterioration of the working conditions and that are of the working conditions leading to a deterioration psychological heath the dignity, the physical or likely to harm or his professional career.” [sic] of the victim (2010) (observing that the legislation is based on a preventative perspective, the perspective, a preventative on based is that the legislation (2010) (observing of cases in and wrongs the “rights ignores and “unrealistic” is approach dialogue heard case have their to of victims rights to the is paid “no attention that bullying,” that “the of a case,” the facts investigating . . . in responsibility employer’s and the paid to no attention with little or approach, a non-punitive takes regulation and action behavior whose those or against perpetrators against sanctions potential self- legislation, combines that for an approach calling and regulation,” breach the (footnote management and unions, employees, involving initiatives and regulation, omitted)); 2013), http://www.thehrdirector.com/business-news/diversity_and_equality/french- law-prohibiting-bullying-in-the-workplace/. prohibiting bullying in the workplace; and (2) display[] in the workplace a copy a copy the workplace in display[] Philippe of bullying.” offense criminal the concerning Code the Criminal (2) and workplace; the in bullying prohibiting . . . of Thomas, Labor Code requires employers to take “all necessary steps to prevent bullying bullying prevent to steps necessary to take “all employers requires Code Labor behavior.” 2015] problems bullying resolve to preferring employers, punish as a find ineffective many which dialogue and consensus, through the Swedish model. to criticize and causes some deterrent FINAL_N SDWA,in contrast, dialogue both includes and punitive and the employer. for both the bully measures the French Labor EU Directives. For example, go beyond the Code OSHA, it is a “singularly appropriate vehicle for such efforts and because preventing preventing because and efforts for such vehicle appropriate a “singularly OSHA, it is the such as . . . efforts complements scheme existing an through bullying workplace workplace of action for private cause a provides that Bill, Healthy Workplace bullying”). French law, see and proposing a regime similar to the Occupational Safety and Health Act (“OSHA”) to the Occupational similar a regime proposing and instead); Harthill, European Perspectives European Victimization at Work: A Critical Assessment Victimization period of time as a few weeks. as a time period of 253, 289–90 (citing Helge Hoel & Ståle Einarsen, Einarsen, & Ståle Hoel Helge (citing 253, 289–90 Sweden of Case The Regulations: requires repeated acts—a single act cannot constitute acts—a singlerequires repeated act cannot constitute bullying. C Y 37692-stj_89-2-3 Sheet No. 123 Side A 04/08/2016 13:04:55 A 04/08/2016 123 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 123 Side B 04/08/2016 13:04:55

, , M K 68 PM PM

C Y

74 2:42

XECUTIVE E OVERNANCE G note 64. note 64. Additionally, TAFF supra AFETY 73 S S In addition to the 72 89:621 [Vol.

& COTLAND S

EALTH 11. 11.

, NHS , H art. L1152-6 (Fr.). art.

.] art. L1152-1 (Fr.); Thomas, .] art. L1152-2 (Fr.). .] note 53, at art. 222-33-2 (Fr.) (providing for up to two years in up to two years for art. 222-33-2 (Fr.) (providing

Bullying in the Workplace: Lessons from the United from the Lessons in the Workplace: Bullying .] L. 247, 251–52 (2008). L. 247, 251–52 (2008). TRAV TRAV TRAV L ’ ST. JOHN’S ST. JOHN’S REVIEW LAW Employers may not discipline, terminate, or not discipline, terminate, Employers may [C. [C. [C. supra supra PÉN 71 NT I

[C. J.

. INN The burden of proof shifts to the employer to The burden of proof shifts These programs focus on allowing employees to focus allowing employees These programs focus on 3/29/2016 70 An employee who claims to be a victim of moral a victim of moral claims to be who An employee Susan Harthill, Harthill, Susan 76 at 4. 69

, 17 M ODE DU TRAVAIL DU TRAVAIL ODE ODE PÉNAL DU TRAVAIL ODE ODE DU TRAVAIL DU TRAVAIL ODE ARINE In addition, the UK government provides guidance for In addition, the Hartemann et al., Id. C C C See Organisations Advice for Id. C The United Kingdom has no specific bullying legislation, but bullying legislation, The United Kingdom has no specific 75 70 71 72 73 74 75 76 68 69 concept of circumstances,strict liability for bullying in some penalties. French law also imposes criminal prison and a fine of 30,000 euros for the perpetrator). a fine of 30,000 euros for the perpetrator). prison and 634 634 requirement, intent an have does not law harassment employees for reportingdiscriminate against bullying or for More measures. to be subject to bullying being or refusing actions law voids any retaliatory employment importantly, the in good faith. taken against those who report FINAL_N France provides mechanism that either the mediation for a does not initiate. If mediation target or the accused bully can the parties of their legal rights. succeed, the mediator informs disprove bullying. employers and employees on its national health and safety and national health and employees on its employers at Work project where the the Dignity website. It also cofunded UK’s largest and businesses work together to combat union bullying. harassment must be “likely to harm the dignity, the physical or the physical the dignity, to harm must be “likely harassment his professional the victim or of heath [sic] psychological career.” Kingdom http://www.hse.gov.uk/stress/furtheradvice/bullying.htm (last visited Aug. 9, 2015); visited (last http://www.hse.gov.uk/stress/furtheradvice/bullying.htm Project at Work see also Dignity harassment must first establish facts consistent with the legal with the legal consistent establish facts must first harassment to the employer then shifts to burden of proof The requirements. did not constitute the acts complained of demonstrate that bullying and werejustified by objective that had elements nothing to do with bullying. Once a complainant has made the to investigate judge may order steps of fact, the allegations situation. trade unions, the government, and companies made efforts totrade unions, the government, address the problem; thus, measure of workers receive some from Harassment Protection protection through the 1997 Act. 37692-stj_89-2-3 Sheet No. 123 Side B 04/08/2016 13:04:55 B 04/08/2016 123 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 124 Side A 04/08/2016 13:04:55

. ] PM PM

IVIL OMP 2:42 [C

art. I(1) available available id. id. , 32 C [BGB] RUNDGESETZ [G 635 635 ESETZBUCH G EUTSCHLAND Other sources of law (“Every person shall have the (“Every shall have the person Id. Id. D

I], last amended by Gesetz [G], by Gesetz amended I], last ], as amended, (Ger.), 81

. L L the Occupational Health and the Occupational and Health [BGB [BGB (internal quotation marks omitted). omitted). marks quotation (internal

82 ÜRGERLICHES 5

B , Teil I , Teil note 76. UNDESREPUBLIK B note 53, at supra

“Mobbing”: The German Law of Bullying Law of The German “Mobbing”:

, 80 See generally See generally UNDESGESETZBLATT supra supra 153, 157. Although a single incident cannot be classified as classified be cannot incident single a Although 157. 153,

May 23, 1949, BGBl. II(1) (Ger.) May 23, 1949, BGBl. II(1) . I at 610, art. 8 (Ger.).

J. L ], Although definition of there is no single statutory UNDESGESETZBLATT

Y ’ STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 78 AW 77 at 159–60. at 159–60. L OL 3/29/2016 RUNDGESETZ FÜR DIE P Incontrast to other countries’ definitions, Germany’s id. G

79 & ARINE ASIC 1896, B Aug. 18,

Hartemann et al., S. Fischinger, Philipp See Act], Treatment [General Equal [AGG] Gleichbehandlungsgesetz Allgemeines Dignity at Work Project See L. ], The German Constitution provides for the protection of for the protection provides Constitution The German [B There is no legislative action specifically designed to prevent action specifically designed legislative There is no

79 80 81 82 77 78 . http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html. http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html. M K ODE AB include the General Equal Treatment Act of 2006 (“ETA”), whichGeneral include the prohibits discrimination at work; definition of bullying does not apply to a single, isolated incident, does not apply to a single, definition of bullying no matter how severe. “mobbing.” The German Civil Code (“GCC”) provides German Civil Code (“GCC”) “mobbing.” The for serve as a basis for contractual and tort liability, which may also bullying and stress at work. claims for bullying, German courts have defined it as “systematic hostility, courts have defined it as “systematic bullying, German of systematically discrimination with the goal harassment and of respect to his or her feeling with other harming the worth.”

right to free development of his personality insofar as he does not violate the rights the not violate does he as insofar personality of his right to free development moral law.”); order or the constitutional the of others or offend against L C Apr. 3, 2013, BGB http://www.staffgovernance.scot.nhs.uk/improving-employee-experience/dignity-at- Dec. 31, 2015). work-project/ (last visited [GG] duty of all be the it shall protect and To respect be inviolable. shall (“Human dignity state authority.”). 2015] full their on achieving on than rather potential physical the and to costly may lead that bullying of workplace toll emotional workplace damage to and tribunal proceedings workplace reputation. FINAL_N at Aug. 14, 2006, B Aug. 14, 2006, personality, honor, health, and equal rights of health, and honor, personality, of equal rights individuals. mobbing, it may still be subject to criminal sanctions. to criminal sanctions. it may still be subject mobbing, C Y 37692-stj_89-2-3 Sheet No. 124 Side A 04/08/2016 13:04:55 A 04/08/2016 124 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 124 Side B 04/08/2016 13:04:55

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C Y 2:42

, JILPT available at available

89:621 [Vol. 84 last amended by Gesetz [G], by Gesetz amended last

Although no legislation legislation no Although 1246 88

http://www.jil.go.jp/english/reports/ http://www.jil.go.jp/english/reports/ at

Generally, company policies company policies Generally, (internal quotation mark omitted). omitted). mark quotation (internal I], 85

. and the Works Constitution Act Constitution Works and the 6

L 83 I], at 2518, last amended by Gesetz [G], July 29, [G], July 29, by Gesetz last amended I], at 2518,

. available at available L

In protecting these rights, Spain has rights, these In protecting note 53, at 87 88,

Teil I [BGB [BGB

, Workplace Bullying and Harassment in Germany in Harassment Bullying and Workplace ST. JOHN’S ST. JOHN’S REVIEW LAW supra supra at 77,

, Teil I . I, at 3836, art. 8 (Ger.). . I, at 3836, L

such as the Act on Prevention of Occupational such as the

86 89 91 3/29/2016 . I, at 2424, art. 9 (Ger.). L at 89. June 2013, June

and Rule 39/1997 on Preventative Services, whichPreventative on and Rule 39/1997

ARINE , UNDESGESETZBLATT 90 Id. Hartemann et al., Id. Id. (B.O.E. 1995, 31) (Spain). Risks of Occupational Act on Prevention (B.O.E. 1997, 39), Services, Prevention for Regulations Arbeitsschutzgesetz [ArbSchG] [Occupational Safety and Health Act], Aug. 7,Act], Aug. [Occupational Safety and Health [ArbSchG] Arbeitsschutzgesetz Act], Sept. 25, 2001, Betriebsverfassungsgesetz [BetrVG]Constitution [Works Martin Wolmerath, Spain’s labor defines bullying as occurring administration Individual Individual and policies all antibullying companies design The Spanish establishes personal “dignity,” Constitution as 86 87 88 89 90 91 83 84 85 EPORT UNDESGESETZBLATT established three distinct types of bullying behavior: (1) civil (1) behavior: distinct types of bullying three established not in relationliability for bullying to protected characteristics; characteristics; for bullying related to protected civil liability (2) for bullying. criminal liability and (3) specifically prevents workplace bullying, victimsspecifically prevents workplace of harassment through various general civil have remedies available provisions, documents/jilpt-reports/no.12.pdf. documents/jilpt-reports/no.12.pdf. of 2001, which promotes workplace equality. which promotes of 2001, Oct. 19, 2013, BGB R 636 636 governs which of 1996, Act Safety theto improve measures safety of employees; health and FINAL_N “[w]here an unwanted conduct occurs with the purpose or the“[w]here an unwanted conduct of creating an effect a person, and effect of violating the dignity of an and of creating a person, of violating the dignity of provide for both preventionprovide for both allowing the and intervention, transfers, or warnings, bullies through company to sanction dismissals. http://www.insht.es/InshtWeb/Contenidos/Documentacion/FichasPublicaciones/Legis Normalizacion/TextosLegales/Ficheros/rd39-en-serv%20prevencion-consolidado%20 CON%20CARATULA%20sin%20NIPO.pdf. 1996, B B procedures; trade unionsprocedures; to bargaining utilize collective do not policies. any antibullying achieve 2009, BGB Risks establish a broad duty for employers to maintain a safe establish a broad duty for workplace. well as the right to “mental (or moral) integrity” as inalienable to “mental (or moral) integrity” well as the right citizen.rights for every 37692-stj_89-2-3 Sheet No. 124 Side B 04/08/2016 13:04:55 B 04/08/2016 124 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 125 Side A 04/08/2016 13:04:55

PM PM

If 2:42 96

, JILPT 69 (2009), 69 (2009), ORK 637 637 RACTICE FOR THE W P Second, the the Second, 94 no intent There is 93 ODE OF IOLENCE AT V

99 Violence, Bullying and Harassment in and Harassment Violence, Bullying ULLING AND ULLING B Finally, the bully’s conduct mustthe Finally, be note 53, at 6 (quoting C note 95 14 (June 1, 2004) http://eurofound.europa.eu/sites/ 2004) http://eurofound.europa.eu/sites/ 1, 14 (June supra

Addressing Workplace Bullying and Harassment in Canada, Canada, in and Harassment Bullying Workplace Addressing ORK 98 W The Canada Safety Council defines bullying as bullying Council defines Safety The Canada For conduct For conduct in as bullying not to qualify relation To be held liable for the actions of others, the for the actions of others, To be held liable UR NSPECTORS ON 100 92 I 97 http://www.ceoe.es/resources/image/Criterio_tecnico_69-2009.pdf) http://www.ceoe.es/resources/image/Criterio_tecnico_69-2009.pdf) STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND , E 3/29/2016 13–14. 13–14.

ABOR L at ARINE Susan Coldwell, Coldwell, Susan Id. Id. Id. Id. Id. Id. Pärnänen, Anna & Lehto Anna-Maija Hartemann et al., One report about the prevalence of bullying in Spain One report about the prevalence Workplace bullying in Canada is often discussed as Workplace bullying in Canada [B]y more than 40 negative ways of behaviour, such as isolation isolation as such behaviour, of ways negative 40 than more [B]y (no communication), workplace the at victim of the tasks, out his/her carries he/she way the questioning/criticising a too heavy or assigning victim, the tasks to job not assigning or on time, possibly be finished so that it cannot workload the victim. about rumours spreading 93 94 95 96 97 98 99 100 92 M K PANISH both repetitive and capable of harming the victim’s health. and capable of harming both repetitive employer must have had knowledge of the bullying and failed to have had knowledge of the bullying employer must protect the victim. S 2015] offensive or humiliating degrading, hostile, intimidating, environment.” FINAL_N an employee is able to establish the required elements, his able to establish the required an employee is own actions or his be held directly liable for employer may either unrelated employees or other acts of for the vicariously liable third parties. to a protected characteristic, an employee must satisfy threemust an employee characteristic, to a protected “the purpose carried out with acts must be First, the elements. the of violating or the effect” victim’s rights. behavior must create an intimidating, hostile, humiliating, or hostile, create an intimidating, behavior must offensive environment. default/files/ef_files/ewco/reports/TN0406TR01/TN0406TR01.pdf. default/files/ef_files/ewco/reports/TN0406TR01/TN0406TR01.pdf. Research, Legislation, and Stakeholder Overview: Profiling a Union Program a Union Profiling Overview: Stakeholder and Legislation, Research, requirement, but must be a there requirement, the connection between causal unwanted harm suffered. behavior and the the Workplace available at available marks omitted). quotation (internal characterized the conduct: “psychological or personal harassment” and is a distinct “psychological or personal harassment” of cause protected a of the basis action from harassment on characteristic. C Y 37692-stj_89-2-3 Sheet No. 125 Side A 04/08/2016 13:04:55 A 04/08/2016 125 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 125 Side B 04/08/2016 13:04:55 M K PM PM

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104 available atavailable Throughout 102 One year after 105 Several territories Several territories 89:621 [Vol. 103 http://www.jil.go.jp/english/reports/

uide/part-i/act-respecting-labour-

106 available at available 138, note 100, at 142 (defining psychological harassment as harassment psychological (defining note 100, at 142

ST. JOHN’S ST. JOHN’S REVIEW LAW 135,

supra supra note 100, at 143. supra supra trespass of “Bullying is a elaborated, The council 101 3/29/2016 http://laws.justice.gc.ca/eng/regulations/sor-86-304/page-114.html. http://laws.justice.gc.ca/eng/regulations/sor-86-304/page-114.html.

June 2013, at June

ARINE , Occupational Health and Safety Act, R.S.O., 1990, c. O.1 (Can.) (defining (defining (Can.) R.S.O., 1990, c. O.1 Act, Safety and Health Occupational Coldwell, Id. Id. (Can.), SOR/2008-148 Regulations, Safety and Health Occupational Canada c. 80, s. 47 (Can.), R.R.Q., Standards, Labour Respecting Act Despite individual response from territoriesDespite individual response within the 105 106 101 102 103 104 EPORT the country, legislative responses to the issue of workplace the issue of responses to legislative the country, varied widely. Federalbullying have includes the legislation and Canada Occupational Health and the Code Canada Labour that can reasonably be violence as “any which define workplace Safety Regulations, . . . threataction, conduct, or gesture harm, injury or illness.” expected to cause R 638 638 rights an employee’s of a violation power, abuse of “an and a of the trust thatbetrayal and an employer should exist between employee.” FINAL_N the law was put into effect, the Labour Standards Commission Labour Standards effect, the into the law was put percent than one complaints, less received approximately 2,500 of which were deemed frivolous. have established stronger protections against workplace bullying, against workplace bullying, stronger protections have established such as Quebec’s Act Harassment at Work Psychological documents/jilpt-reports/no.12.pdf. documents/jilpt-reports/no.12.pdf. “workplace violence” as “(a) the exercise of physical force by a person against a against by a person force of physical the exercise as “(a) violence” “workplace worker, to the injury physical cause or could causes worker, in a workplace, that that could in a workplace, a worker, force against to exercise physical an attempt (b) is it that behaviour or a statement worker, (c) to the physical injury cause the against force physical to exercise threat as a interpret a worker to for reasonable (internal the worker” to injury physical cause could that worker, in a workplace, omitted)). marks quotation available at available http://www.cnt.gouv.qc.ca/en/interpretation-g standards/labour-standards-sect-391-to-97/psychological-harassment-sect-8118-to- from free environment to a work a right has (“Every employee 8120/index.html prevent action to take reasonable must Employers harassment. psychological to put become aware of such behavior, whenever they and, harassment psychological a stop to it.”); Coldwell, him/her torment . . . . Most analysts maintain that the existence of psychological of psychological existence maintain that the Most analysts or causes self-esteem person’s a lowers that behaviour abusive or “humiliating . . . . him/her torment the who experiences target on the by the effects is determined harassment the on rather than intent of the perpetrator.”). harassment an individual’s freedoms, a denial of the right to earn a living the right to earn a denial of freedoms, an individual’s individual.” of an the destruction and, eventually, Ontario’s Occupational Health and Safety Act. country, Canada lacks a uniform legal remedy to the problem of is growing within of this issue workplace bullying. Awareness 37692-stj_89-2-3 Sheet No. 125 Side B 04/08/2016 13:04:55 B 04/08/2016 125 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 126 Side A 04/08/2016 13:04:55

. PM PM

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available at available Although Although 639 639 107 (2013), (2013),

24

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If the victim wants to to wants victim the If , https://www.fwc.gov.au/about- 2012–13, 111 EPORT R OMMISSION C This Act created the Commission, Commission, the created Act This NNUAL NNUAL 110 A

, ORK (May 27, 2014), http://blogs.windsorstar.com/2014/ (May 27, 2014), http://blogs.windsorstar.com/2014/

W , Workplace Bullying Issues a Worldwide Concern a Worldwide Bullying Issues Workplace TAR S AIR Record Workplace Bullying Award Against Walmart Reduced Reduced Walmart Against Bullying Award Workplace Record The Fair Work Amendment Act of 2013, which Amendment Act of 2013, The Fair Work OMMISSION C , F 109

(May 27, 2014, 9:14 AM) http://ebn.benefitnews.com/blog/ebviews/ http://ebn.benefitnews.com/blog/ebviews/ AM) 9:14 2014, (May 27, 108 STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND INDSOR ORK 3/29/2016 W EWS , W

Boucher was awarded $200,000 for intentional infliction of mental of mental infliction intentional for $200,000 was awarded Boucher N

AIR ARINE About Us F Cobb, Pinkos Ellen Id. Craig Pearson, Pearson, Craig Id. 112 In 2009, Australia developed the Fair Work Act. This Act developed the Fair Work In 2009, Australia

109 110 111 112 107 108 M K ENEFIT suffering, $1 million in punitive damages, $10,000 for assault from Wal-mart, as from Wal-mart, assault $10,000 for damages, punitive in million suffering, $1 punitive in $150,000 mental suffering, of infliction for intentional $100,000 well as This supervisor. by another assault for and $10,000 supervisor, her from damages $410,000. to from $1.46 million reduced award was recently us/overview (last updated Mar. 27, 2014). Mar. updated us/overview (last seek financial compensation, the victim must sue at common law the victim compensation, seek financial contract, or breachfor personal injury, breach of of a statutory duty. 05/27/record-workplace-bullying-award-against-walmart-reduced-on-appeal/ (last (last 05/27/record-workplace-bullying-award-against-walmart-reduced-on-appeal/ 2014, 2:22 PM). May 27, updated B on Appeal 2015] in Ontario brought case the recent by as shown country, the by Wal-Mart. her employer, Boucher against Meredith FINAL_N workplace-bullying-issues-a-worldwide-concern-2741776-1.html?zkPrintable=true. workplace-bullying-issues-a-worldwide-concern-2741776-1.html?zkPrintable=true. created Fair Australia—now Work Fair designated the Work tribunal national workplace Commission (“Commission”)—a that unfair workcomplaints of unsafe and investigates environments. https://www.fwc.gov.au/documents/documents/annual_reports/ar2013/fwc-ar-2013- web.pdf. added protection against bullying in the workplace, became against bullying in the added protection 1, 2014. effective January which is designed to investigate all reports of bullying, and if the to investigate all reports of which is designed Commission is to be substantiated, the complaint is found authorized to award injunctive relief. this case brought much needed awareness to the issue, it still to the issue, needed awareness brought much this case the victim torequired claims bring of infliction of intentional of action a separate cause of allowing suffering instead mental for bullying. C Y 37692-stj_89-2-3 Sheet No. 126 Side A 04/08/2016 13:04:55 A 04/08/2016 126 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 126 Side B 04/08/2016 13:04:55 M K PM PM

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bullying is is bullying , http://www.fair 113 89:621 [Vol. http://www.fairwork.gov.au/

, MBUDSMAN O The Fair Work Commission and and Work Commission The Fair

ORK W See MBUDSMAN O AIR F ORK

W , AIR The effects of creating a provision The effects , F 114 ST. JOHN’S ST. JOHN’S REVIEW LAW 3/29/2016 ARINE The Fair Work Ombudsman is an organization dedicated to providing providing to dedicated organization is an Ombudsman Work Fair The Bullying & Harassment The international cases provide some context and guidance. and cases provide some context The international guidance. According Work Ombudsman, Fair to the 113 114 specifically designed to address the prevalence of workplace to address the prevalence specifically designed of effectiveness the on statistics as be seen, to bullying remains not yet been compiled. have the new legislation protected to not need to tie bullying protection Legislators do mentioned have Indeed, all of the countries characteristics. Further,status-based protections. countriesalthough many have even countries than the United States, stronger labor protections such as France, where unions only represent eight percent of the to protect all employees workforce, have developed mechanisms This brief international tour regardless of union membership. that governments,has also shown industry unions, groups, labor can collaborate to combat and nongovernmental organizations best interests to eliminate it bullying because it is in everyone’s from the workplace. Many countries have a more dignitarian concept, which is discussed in thenext Part, but nonetheless, provide protections approaches to they have adopted different that do not rely solely legal right toon a constitutional or other human dignity. work.gov.au/employee-entitlements/bullying-and-harrassment (last visited Aug. 9, (last visited work.gov.au/employee-entitlements/bullying-and-harrassment 2015). 640 640 FINAL_N about-us/the-fair-work-commission-and-us-whats-the-difference (last visited Aug. 9, Aug. 9, (last visited about-us/the-fair-work-commission-and-us-whats-the-difference 2015). information regarding the policies of the Fair Work Act. The Ombudsman enforces enforces Ombudsman Work Act. The of the Fair the policies regarding information are investigations All complaints. investigate not does Act but the with compliance Commission. Fair Work by the handled repeated unreasonable behavior that creates a risk to health or a risk to that creates behavior unreasonable repeated wheresafety, as “behaviour is defined behavior unreasonable or threatening. intimidating humiliating, victimising, includ[ing] whether can depend on unreasonable a behaviour is Whether a see the person might reasonable in as unreasonable behaviour the circumstances.” Us—What’s the Difference? Us—What’s 37692-stj_89-2-3 Sheet No. 126 Side B 04/08/2016 13:04:55 B 04/08/2016 126 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 127 Side A 04/08/2016 13:04:55 PM PM

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§ 46(1) § ORTS T OLUTION 641 641 S OF ) IGHT IGHT R ECOND They also remind remind also They (S 115 One Florida court even One Florida court ILL THE ILL THE 117 B ESTATEMENT While this unusual legal 118 ORKPLACE ORKPLACE W note 20. note 20. However, plaintiffs rarely recover for 119 EALTHY EALTHY supra supra H protects bullying that current law adequately and STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 116 3/29/2016 Oncale v. Sundowner Offshore 523 U.S. 75, 80 (1998). Servs., Inc. of elements (“The (Neb. 2000) 466 461, 606 N.W.2d Huff v. Swartz, S THE S THE ARINE Alexis v. Ventura, 66 So. 3d 2011) (quoting 986, 987–88 (Fla. Dist. Ct. App. v. Ventura, Alexis of emotional infliction intentional of Torts defines Restatement The Second Rubenfire, Rubenfire, See See Others believe that state tort law already provides an Others believe that Antibullying legislation has its critics, of course. Some worry of course. Some has its critics, legislation Antibullying 118 119 115 116 117 III. I M K found that a supervisor, who allegedly made “hostile statements” statements” who allegedly made “hostile found that a supervisor, not in the “hostile acts,” couldand committed her tortiously interfere with . . relationship with employee’s the supervisor the employer if . purposes and “act[ed] solely with ulterior principal’s best interests.” development could appear promising—and development could appear promising—and an appears to be by allowing employers to escape exception—it could also backfire deem that bullying supervisors acted outside courts liability if their authority. the scope of emotional of infliction intentional adequate remedy through the distress claim. Sloan v. Sax, 505 So. 2d 526, 528 (Fla. Dist. Ct. App. 1987) (internal quotation quotation (internal 1987) App. Ct. Dist. 528 (Fla. 526, 505 So. 2d Sloan v. Sax, marks omitted)). 2015] FINAL_N plaintiffs. One could argue, for example, that the bully could argue, for example, plaintiffs. One and relationship the target’s employment affects unreasonably with a face liability for tortious interference should therefore or expectation. business relationship intentional infliction of emotional distress due to the high burden to the high burden due emotional distress of infliction intentional requiring conduct that is so “extreme and outrageous” and tortious interference with a business relationship or expectation are ‘(1) the ‘(1) are expectation or relationship business a with interference tortious knowledge by the (2) or expectancy, valid business relationship a existence of of act intentional an unjustified (3) expectancy, or relationship the of interferer the caused interference proof that the interferer, (4) the part of the on interference was or expectancy relationship whose party to the damage (5) and sustained, harm 1995)). 278–79 (Neb. 539 N.W.2d 274, P & P Enters., ” (quoting Koster v. disrupted.’ causes or recklessly intentionally [that] conduct and outrageous as “extreme distress to another.” R distress severe emotional proponents that theproponents that in the courts cannot dictate civility workplace A. Opposition to the Antibullying Legislation creating could arise from litigation that flood of frivolous about a that workplace policies claim Some action. a new cause of in the privatealready cover this sector. (1965). C Y 37692-stj_89-2-3 Sheet No. 127 Side A 04/08/2016 13:04:55 A 04/08/2016 127 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 127 Side B 04/08/2016 13:04:55 M K PM PM

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122 . 1071, 1074, . 1071, 1074, EV R

L.

. 126 89:621 [Vol. DMIN , 57 A In fact, OSHA must protect protect must OSHA fact, In Interlocking Regulatory and Industrial Industrial and Regulatory Interlocking 125 note 63, at 256–57 (arguing that the shift from (arguing that 63, at 256–57 note OSHA, a however, does not provide 124 supra supra ST. JOHN’S ST. JOHN’S REVIEW LAW Further, employers have more latitude to act more latitude have employers Further, Fla. Stat. § 784.011(1) (2012) (defining misdemeanor assault as “an as assault (defining misdemeanor 784.011(1) (2012) § Fla. Stat. , Fla. Stat. § 784.03(1)(a) (2001) (defining felony battery as 784.03(1)(a) battery (defining felony (2001) § Stat. , Fla. 120

,

3/29/2016 123 Susan Harthill, Susan Polay v. McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014) (internal 2014) (internal 1128 (Mass. N.E.3d 1122, 10 v. McMahon, Polay Employees assault charge against may also file an the ARINE 121 See political lack of resources, that “OSHA’s argues Lobel Orly Professor Florida’s law provides, “A person who willfully, maliciously, and repeatedly and repeatedly maliciously, willfully, who “A person provides, law Florida’s See, e.g. See, e.g. See Borrowing from EuropeanBorrowing from counterparts, some countries Criminal antistalking laws, which have also been used in the also been used which have antistalking laws, Criminal 124 125 121 122 123 120 private right of action and has a significant backlog of private right of action and investigations and inspections. 130 million workers with only 2,200 inspectors. workers 130 million propose alternatives such as the propose alternatives use of Occupational Safety and Health Act (“OSHA”), mechanisms to which has state and federal health. protect workers’ unreasonably because of the at-will because of unreasonably nonunionized status of their employees. of some measure bullying, may also provide UK to combat relief. bully if they have reasonablebully if they have an unlawful touching of fear Relations: The Governance of Workplace Safety Workplace of Governance Relations: The the and issues these working to remedy is of Labor The Department (2005). 1083–84 to make has a mandate Committee Advisory Protection Whistleblower approving and policies streamlining on Labor of Secretary the to recommendations intentional, unlawful threat by word or act to do violence to the person of another, another, of person the to violence do a of stalking, offense the commits person to another cyberstalks or follows, harasses, act or word by . the first degree . . of .” Fla. Stat.misdemeanor § 784.048(2) (2012). threat unlawful intentional, well- a creates act which some doing so, and do to ability apparent an with coupled person is imminent”). founded fear in such other that such violence the against person another strik[ing] or touch[ing] and intentionally [a]ctually “(1) to another person”). bodily harm caus[ing] or (2) [i]ntentionally will of the other; 642 642 decency” of bounds possible all “beyond as “regarded to be civilized in a intolerable and utterly atrocious, community.” FINAL_N battery charge if they actuallyunlawful experience an touching. OSHA from physical health and safety to psychological health and well-being makes well-being and health psychological safety to and health OSHA from physical bullying). to address agency OSHA an appropriate to low inspection have all contributed mandate legislative flawed and weaknesses, to lower turn have failed in which of prosecution, low levels and rates, low penalties, rates.” Orly Lobel, injury workplace quotation mark omitted) (noting that “mere insults, indignities, threats, annoyances, threats, annoyances, indignities, omitted) (noting that “mere insults, mark quotation marks quotation (internal are insufficient or other trivialities” petty oppressions, 2005) (dismissing App. 693 (Tex. Ct. 190 S.W.3d 685, v. Wisener, omitted)); Clayton Court’s Texas Supreme the quoting and prevailing, in the difficulty a case, noting we must recent statement that “[f]or the six years, tenth time in little more than meet the for failing to claim distress of emotional infliction intentional reverse an omitted)). marks quotation tort” (internal of that exacting requirements 37692-stj_89-2-3 Sheet No. 127 Side B 04/08/2016 13:04:55 B 04/08/2016 127 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 128 Side A 04/08/2016 13:04:55

, PM PM

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L T ’ available at available EP D

643 643 U.S.

, https://www.osha.gov/osh

, Workers’ compensation is is compensation Workers’ id.

ABOR L See In addition, the aggressor In addition, the T ’ 128 EP D In most states, employees also states, employees In most

127 , U.S.

129 STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND Whistleblower Protection Advisory Committee Advisory Protection Whistleblower The bill defines abusive conduct: abusive conduct: The bill defines 3/29/2016 130 Fla. Stat. § 440.015 (2012). Fla. Stat. § 440.015 (2012). ARINE H.B. 1981, 108th Gen. Assemb., Reg. Sess. 2014), (Tenn. isit as HWB of the iterations recent most the from come definitions These Commonly Used Statistics Used Commonly See must show: for example, the employee In Florida, The HWB attempts to fill the gaps in protection for targets to fill the gaps in protection The HWB attempts Others note that note Others the that workers’ scheme compensation The HWB makes it unlawful to subject an employee to an employee to to subject an The HWB makes it unlawful (1) The employer deliberately intended to injure the employee; or (2) [t]he or (2) the employee; to injure intended deliberately The employer (1) [upon] . . . based knew, that the employer in conduct engaged employer was virtually known danger, a identifying specifically warnings explicit employee was and the in injury or death to the employee, certain to result the and was not apparent danger the not aware of the risk because as to danger so the or misrepresented concealed deliberately employer judgment . . . . informed from exercising the employee prevent 129 130 126 127 128 M K stats/commonstats.html (last visited Aug. 9, 2015). visited (last stats/commonstats.html http://www.capitol.tn.gov/Bills/108/Bill/HB1981.pdf. http://www.capitol.tn.gov/Bills/108/Bill/HB1981.pdf. effectiveness. effectiveness. 2014). Aug. 9, http://www.whistleblowers.gov/wpac.html (last visited 2015] FINAL_N Fla. Stat. § 440.11(1)(b) (2013). The employee must also show that the conduct was a was a that the conduct show must also 440.11(1)(b) (2013). The employee Fla. Stat. § death. or injury employee’s of the legal cause would escape punishment under this regime. would escape punishment B. the Filling Gap with theHWB of emotional infliction hurdles of intentional caused by the high and enforcement of a private right of action distress, the lack workers’ OSHA, the exclusivityresources in provision of protected status and the requirements for compensation law, bill drafters of the Tennessee under Title VII. Indeed, the specifically noted that bullying claimants had no remedy under the aforementioned laws. proposed in state legislatures for the 2013 to 2014 legislative sessions. David C. sessions. to 2014 legislative for the 2013 legislatures state in proposed face a high burden to meet the intentional tort exception for tort exception meet the intentional burden to face a high workers’ compensation exclusivity. should suffice, but it does not. It serves as the exclusive remedy as the exclusive not. It serves but it does should suffice, give up the and workers injuries, states for workplace in most right under under any for recovery no-fault system this claims. negligence common-law “abusive work[ing] environment,” which “exists when anwork[ing] environment,” which when “exists “abusive with intent to employees, acting employer or one or more of its subjects that employee tocause pain or distress to an employee, abusive conduct thatharm, psychological harm, causes physical or both.” generally the exclusive remedy for employees injured in the workplace; they cannot in the workplace; they injured for employees remedy generally the exclusive sue for tort damages. C Y 37692-stj_89-2-3 Sheet No. 128 Side A 04/08/2016 13:04:55 A 04/08/2016 128 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 128 Side B 04/08/2016 13:04:55

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EMP , 22 T 89:621 [Vol.

Courts can also order the which generally does not 131 133 134 note 3. The individual perpetrator, supra 135

, 510 U.S. 17, 21–22 (1993), which established , 510 U.S. 17, 21–22 (1993), which established See (Aug. 9, 2012), http://www.workplacebullying.org/ (Aug. 9, 2012), http://www.workplacebullying.org/ WBI Survey: Workplace Bullying Health Impact WBI Survey: Workplace

Crafting a Legislative Response to Workplace Bullying to Workplace Response a Legislative Crafting .

NST J. 475, 504 (2004). I ST. JOHN’S ST. JOHN’S REVIEW LAW 136 Y ’ note 130, at 351, 353. This requirement for documentation documentation for requirement 353. This note 130, at 351, note 130, at 336, 353. note 130, at 336. OL P

. . 329, 334 (2013) (internal quotation marks omitted). omitted). marks quotation . 329, 334 (2013) (internal supra supra supra MP EV ULLYING at 336. E R

B 3/29/2016 & L.

. . ; David C. Yamada, C. Yamada, ; David Employers subject to Title VII will recognize the reasonableness standard standard the reasonableness recognize VII will Title subject to Employers Emerging American Legal Responses to Workplace Bullying American Legal Responses Emerging and are entitled to reinstatement, back pay, front pay, to reinstatement, back pay, and are entitled TS TS ARINE Yamada, Yamada, See id. Id. Yamada, Id. Yamada, R R

. 132 . Unlike the Tennessee law, the HWB Tennessee to private would extend Unlike the Harris v. Forklift Systems, Inc. Harris v. Forklift Systems, Abusive conduct is defined as: acts, omissions, or both, that a that both, or omissions, as: acts, defined is conduct Abusive the severity, on based abusive, find would person reasonable but [and may] include, . . . conduct of the and frequency nature, islimited not to: repeated verbalofabuse the use such as or non-verbal, verbal, and epithets; remarks, insults, derogatory humiliating or intimidating, of a threatening, conduct physical work employee’s of an or undermining sabotage the or nature; that factor aggravating an considered be It shall performance. or known psychological employee’s exploited an the conduct not will normally act A single disability. or illness physical but an especially conduct, constitute abusive severe and standard. may meet this act egregious 133 134 135 136 131 132 IV MP C ORKPLACE

8 E from the hostile environment standard. standard. the hostile environment happen in a Title VII case unless the employer chooses to do so. do so. chooses to the employer a Title VII case unless happen in or jury can only a judge adverse employment action, If there is no damages from the employer award emotional distress or punitive if the conduct was “extreme and outrageous,” and emotional $25,000distress damages are capped at though there even is no absolute cap on damages. however, faces liability for both punitive and emotional distress for both punitive and emotional however, faces liability employee experienced a tangible damages whether or not the action. employment the Workplace Bullying Institute, seventy-one percent of targets surveyed sought surveyed of targets percent seventy-one Institute, Bullying the Workplace professional health saw a mental percent sixty-three and a physician treatment from to deal with the bullying. W 2012/08/09/2012-d/. Yamada, Yamada, & 644 644 FINAL_N from a medical professional would not be onerous for most plaintiffs. According to to According plaintiffs. for most onerous not be would professional from a medical bully removed from the workplace, medical expenses, compensatory damages, injunctive relief, compensatory medical expenses, fees. punitive damages, and attorney employers. Employees must bring an action within one year of an action must bring Employees employers. or psychological provide proof of medical conduct, the alleged care, 37692-stj_89-2-3 Sheet No. 128 Side B 04/08/2016 13:04:55 B 04/08/2016 128 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 129 Side A 04/08/2016 13:04:55 PM PM

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ORKPLACE ORKPLACE OMMISSION W Yamada Yamada C

, 524 U.S. 775 , 524 137 645 645 , 14 J. , 14 PPORTUNITY PPORTUNITY Burlington Industries, Inc. O

. 141 MP E QUAL E

Faragher v. City of Boca Raton v. City Faragher , U.S. case, as long as there is no tangible is no tangible there as as long case, Strengthening the Healthy Workplace Act—Lessons from from Act—Lessons Workplace the Healthy Strengthening Ellerth

Finally, the HWB does not preclude relief Finally, the HWB does not note 130, at 337. note 130, at 338. 140 Additionally, he borrows a page from harassment harassment from page a borrows he Additionally, supra supra (2009). (2009).

But Yamada also allows employers to escape But Yamada also allows STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND Some of these criticisms are addressed below with a criticisms are addressed below Some of these 138 3/29/2016 139 142 Jerry Carbo, Jerry Carbo, at 353–54. at 353–54. at 335. Employers who have policies in place to comply with Title VII will VII Title with to comply place in policies who have at 335. Employers , 524 U.S. 742 (1998), and U.S. 742 (1998), , 524 105–06 ARINE

Yamada, Yamada, Retaliation About See Facts Yamada, Id. See Id. note 130, at 337. note 130, As with theAs with The HWB has critics who claim that it goes too far and those 97,

138 139 140 141 142 137 . M K TS (1998), which discussed employer liability for tangible employment actions by a by actions employment for tangible liability employer discussed (1998), which had been employment action tangible no if defenses the affirmative and supervisor taken. v. Ellerth be familiar with this requirement because it comes from it because this requirement with be familiar and discrimination laws and has an antiretaliation and has an antiretaliation laws and discrimination provision. under any receives other law, except that when the plaintiff also workers’ compensationinjury, the for medical same costs for the workers’ compensation costs will be reimbursed from of action. compensation in an HWB cause proposed alternative that draws from the HWB and goes beyond proposed alternative that draws it. liability if adverse employment decisions are based on poor based are employment decisions adverse liability if economicperformance, misconduct, necessity, a reasonable of a or as the result performance evaluation, reasonable or activity, suchinvestigation about inappropriate as an ethical legal violation. eschews administrative agencies such as the EEOC for agencies such as eschews administrative adjudicatingand financial because the existing backlog claims efforts to passcases would hamper burden to legislation. (last visited Aug. 9, 2015), http://www.eeoc.gov/laws/types/facts-retal.cfm; Yamada, Yamada, Aug. 9, 2015), http://www.eeoc.gov/laws/types/facts-retal.cfm; (last visited supra R 2015] FINAL_N Title VII and IIED Litigation and Stories of Targets’ Stories of Targets’ Experiences and Title Litigation VII and IIED correct . . . [the] actionable behavior,” and the employee the employee and behavior,” actionable [the] . defenses affirmative the HWB provides action, employment if . care to prevent reasonable exercised “the employer and . correct preventive of appropriate take advantage failed to “unreasonably or corrective the employer.” provided by opportunities who feel that the well-intentioned law does not go far enough to law does not the well-intentioned who feel that protect intent workers because of the affirmative defenses and standard. C Y 37692-stj_89-2-3 Sheet No. 129 Side A 04/08/2016 13:04:55 A 04/08/2016 129 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 129 Side B 04/08/2016 13:04:55 M K PM PM

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SE OF U available at . 257, 282–83 282–83 . 257, USTICE J EV R

L. . 18 (2007), ILL THROUGH THE 89:621 [Vol. B ILL AND THE OASTAL OASTAL TUD B C S

Under a procedural . ROCEDURAL ROCEDURAL 143 LA P , 11 F Although he discusses TJ in ESOURCE ORKPLACE ORKPLACE R 147

. W ORKPLACE ORKPLACE UM W Employee Engagement and Fairness in the in Fairness and Engagement Employee H EALTHY Employment Law as if People Mattered: Bringing Mattered: if People as Employment Law H DVANCED DVANCED ST. JOHN’S ST. JOHN’S REVIEW LAW A URISPRUDENCE AND J note 50, at 547 (“Employment law has been largely invisible, law has been (“Employment note 50, at 547 IGNITY IN THE IGNITY IN D The perception of fairness is critical because The perception supra Yamada encourages lawyers Yamada encourages lawyers who provide legal 144 ENTER FOR 3/29/2016 145 He recommends that management-side employment that management-side employment He recommends Anne-Marie Kontakos, Kontakos, Anne-Marie , C at 283–84. ODIFYING THE THE ODIFYING 146 ARINE Id. Yamada, David C. Yamada, Id. See HERAPEUTIC An employee’s perception of fairness in process is paramount process is paramount of fairness in perception An employee’s David Yamada (“TJ”), discusses therapeutic jurisprudence T 144 145 146 147 143 AFETY AND AFETY AND IV. M S however, in the developing scholarly and practice-related commentary on on commentary practice-related and scholarly the developing however, in change would this dignitarian framework, a [u]nder [and] jurisprudence therapeutic . . . dramatically (footnote omitted))..” justice theory, an employee perceives a processjustice theory, an to be fairer when a outcome” of of the development voice in the “a he is proceeding. counsel use TJ to facilitate discussion around organizationalcounsel use TJ to facilitate climate in addition to legal risk. (2010). 646 646 FINAL_N both for employee engagement and for the success of any remedy of any the success and for employee engagement both for in the workplace. relating to bullying http://www.uq.edu.au/vietnampdss/docs/July2011/EmployeeEngagementFinal.pdf http://www.uq.edu.au/vietnampdss/docs/July2011/EmployeeEngagementFinal.pdf means the in of fairness perceptions [sic] employees’ an to refers justice (“Procedural (citation of resources.” and distribution the amount to determine used processes and omitted)). counsel to employees to consider physical and mental health, health, to consider physical and mental employees counsel to legal future employment options, and viability, financial rights. Workplace Therapeutic Jurisprudence into the Workplace into Jurisprudence Therapeutic the context his focus remains on remedies of drafting legislation, by the stakeholders of all of and the need to balance the interests whether the workplace bully is a boss, supervisor, or subordinate, or subordinate, supervisor, boss, a bully is whether the workplace the target believes of power. is an inherent imbalance that there ingrained in of dignity—a concept The target also suffers a loss not a bullying legislation, but, unfortunately, much of the EU employment law jurisprudence. factor in most U.S. healing focus, in his work on a which employs a holistic and However, the HWB does dignitarian concept of the workplace. TJ principles in its remedial not adequately integrate the structure. 37692-stj_89-2-3 Sheet No. 129 Side B 04/08/2016 13:04:55 B 04/08/2016 129 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 130 Side A 04/08/2016 13:04:55

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., Med. see also See e.g 647 647 ., http://www.workplace NST I

148 ULLYING ULLYING B Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1022, P.2d Inc., 876 Anheuser-Busch, v. Turner

, or constructive discharge claims, when ORKPLACE 149 W see, e.g. Both of the bills would allow redress in state 150 STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 3/29/2016 at 284–86. at 284–86. Economic Harm, ARINE Almost one-quarter of targets reported being constructively discharged, and discharged, constructively being reported of targets one-quarter Almost Id. often torts cases intentional and harassment, discrimination, in Plaintiffs Yamada sees therapeutic jurisprudence as addressing theaddressing as jurisprudence sees therapeutic Yamada proposed SDWAThis Article’s adopts most of the 150 148 149 M K courts. Assurance Co. v. Castro, 302 S.W.3d 592, 595 (Ark. 2009). Assurance bullying.org/individuals/impact/economic-harm/ (last visited Aug. 9, 2015); 9, 2015); Aug. visited (last bullying.org/individuals/impact/economic-harm/ Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317 (11th Cir. 1989) (“To prove Cir. 1989) (11th 1317 1311, Inc., 867 F.2d Steele v. Offshore Shipbuilding, working that their must demonstrate employees discharge, the constructive be would position their in person that a reasonable so intolerable were conditions resign.”); to compelled cause of action (defining the of proof). (Cal. 1994) and outlining the burden 1025–30 2015] for recovery, standards high of action, cause a including harm, and and remediate to prevent for employers incentives employers. defenses for affirmative FINAL_N forty percent indicated they resigned to preserve their health or safety in a 2011 2011 in a safety or health their preserve to resigned they indicated forty percent survey. bring negligent supervision claims as well. A plaintiff must prove that the employer employer prove that the must A plaintiff as well. claims supervision bring negligent parties third subject would conduct employee’s an that have known knew or should was the retention or supervision negligent that the harm, of risk unreasonable to an harm was foreseeable. and that the of the injury, cause proximate appropriate. lack of a remedy for targetslack of no law addresses who are told that providing a falls short in but the HWB the workplace; in bullying complete remedy. itAlthough hurdles by removes some enough in affording not go far for relief, it does providing a basis are not If there TJ proponents espouse. healing that the sense of bullying, TJ to address appropriate the workplace procedures in can promotefor the healing victim and when possibly, appropriate,offender, as described a treatment plan for the below. It supports the HWB but with some differences. components of as a way to the one-year statute of limitations spur the victim to come forward in a timely manner, particularly if the process is, below, more conducive to promotingas outlined dignity and the supports also It system. healing than the current litigation damages and the notion that distress emotional on limitations Like the practical. and are reasonable the affirmative defenses HWB, the SDWA would not preclude plaintiffs from bringing torts,other causes of action for state such as intentional infliction Plaintiffs would also be expected to include distress. of emotional negligent supervision, C Y 37692-stj_89-2-3 Sheet No. 130 Side A 04/08/2016 13:04:55 A 04/08/2016 130 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 130 Side B 04/08/2016 13:04:55 , M K PM PM

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. ENTER FOR C 89:621 [Vol. AND L ’ AT , 53 V , 53 , N http://www.flcourts.org/resources-and- Reentry Courts: Looking Ahead: A Looking Ahead: Reentry Courts:

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, The judges in these courts play an The judges Michael C. Dorf & Charles F. Sabel, C. Dorf & Charles Michael 152 ST. JOHN’S ST. JOHN’S REVIEW LAW Therapeutic Jurisprudence and Problem Solving Courts and Jurisprudence Therapeutic (2011), http://www.courtinnovation.org/sites/default/files/ see also see

These courts often These courts deal with parties with 153 This additional training enables judges to develop judges to This additional training enables 7–8 L.J. 1055, 1055 (2002). L.J. 1055, 1055

. 151

3/29/2016 Offers Online Domestic Violence Tool Violence Offers Online Domestic RB

154 at 1061; at 1055–56. at 1055–56. U ARINE Dependency Benchbook Dependency Bruce J. Winick, J. Winick, Bruce Id. Id. to facilitate Program Improvement Court the Congress created For example, AJA The proposed SDWA SDWA proposed The a to its approach in however, differs, To effectively implement therapeutic justice in current 151 152 153 154 SSISTANCE ORDHAM Conversation About Strategies for Offender Reintegration Strategies About Conversation visited Aug. 9, 2015); Robert V. Wolf, Aug. 9, 2015); Robert visited 833 n.2 (2000) (discussing the references to drug courts as examples of “therapeutic of “therapeutic examples as courts drug to references the (discussing n.2 (2000) 833 to if unconnected attitude, “a therapeutic cautioning that but jurisprudence” risks capriciousness”). mechanisms, systemic monitoring subject-matter expertise handle emotionally and the skills to charged format. Moreover, judges cases outside of the traditional who currently use TJ principles emphasize the importance of substance abuse or mental health issues and were first employed issues and or mental health substance abuse They have now in 1989. in Miami, Florida in drug courts and youth, mental health, violence, expanded to domestic dependency courts. services/family-courts/dependency/dependency-benchbook.stml (last visited Aug. 9, (last visited services/family-courts/dependency/dependency-benchbook.stml 2015); A 648 648 FINAL_N documents/Reentry_Courts.pdf. documents/Reentry_Courts.pdf. F http://www.ncsc.org/Education-and-Careers/DV-Education-for-Judges.aspx (last training for state dependency judges, where a team staffed by attorneys, court a team staffed by attorneys, judges, where dependency training for state through assistance and training provides programmers system and analysts, rules laws, national state and of consist Benchbooks court. virtual and Benchbooks as new practices or which are updated practices, bench of court, and subject-specific policies employed. are Thevirtual places program court a judgesimulated in a variety of a on rule must and then testimony hears the judge courtroom, where issues. enhanced role in directing the partiesenhanced role resources to appropriate treatment of the progress and effectiveness and monitoring mechanisms. proposed remedy. proposed the perception to improve One way of fairness processin both and remedy the is through use of therapeutic jurisprudence and mechanisms dispute resolution in alternative problem- from the lessons of some court system using in the court system, to the traditional courts. Contrary solving which specific dispute or controversy,focuses on the problem-solving effort to avoid in an problem the underlying courts look to recurrence. problem solving courts, these judges problem solving courts, these specialized receive training. Courts and Emergent Experimentalist Government and Emergent Experimentalist Courts 37692-stj_89-2-3 Sheet No. 130 Side B 04/08/2016 13:04:55 B 04/08/2016 130 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 131 Side A 04/08/2016 13:04:55 PM PM

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649 649 (June 2008), (June 2008), The authors 155

1 J. 57, 58 (2005). J.

. YS S

. Challenges and Solutions toChallenges UST SSISTANCE , 26 J A Applying Problem-Solving Principles in Principles Problem-Solving Applying Courts could, for example, require USTICE USTICE 157 J UREAU This solution makes sense, as there may be some This solution makes B 156 STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 3/29/2016

, at 67. ARINE Donald J. Farole, Jr. et al., Farole, Jr. et Donald J. Id. Munsterman, & Janice Carey Shannon Judges whoJudges law cases employment over traditional preside One proposed remedy for the effective management of effective management for the One proposed remedy

155 156 157 M K Mainstream Courts: Lessons for State Courts for State Lessons Courts: Mainstream 2015] ahaving creative, effective set for skill problem-solving aid in and experience education, training, intermediaries; attribute. of this important development receive training should also in TJ if mediation principles because a traditional in redress may still seek of bullying fails, victims into a traditional on integrating TJ principles court. A study court setting pointed out numerous practices that could be in traditionalsuccessfully implemented courts. FINAL_N https://www.bja.gov/Publications/AU_ProbSolvCourts.pdf. found that judges could more proactively seek information about information could more proactively seek found that judges information to cases and use that craft individualized orders, and Further, more directly with defendants. they could engage they to incorporate and have more opportunities found that judges programs; access to social service increase a defendant’s could progress; supervision to monitor a defendant’s integrate ongoing and could parties involved, create resolutions agreeable to all thereby increasing trust court. between the parties and the those for judges to choose only judicial time and resources was cases that would benefit most from the increased attention and supervision. Implementing Problem Solving Courts from the Traditional Court Management Court Management from the Traditional Courts Problem Solving Implementing Perspective bullying cases for which TJ would be inappropriate—such as one bullying cases for which TJ would physical attack thereby involving in which the victim suffered a Further, as discussed below, the the criminal justice system. funding to states that federal government can allocate incorporate therapeutic principles into their traditional court as they see fit to the money systems. States could then disburse support community resources and local social service programs. shown that using problem- More importantly, studies have solving principles more positive outcomes, such as results in lower recidivism rates. anger management courses or other counseling for the offender for the counseling other anger management courses or or judgment. as part of a binding settlement C Y 37692-stj_89-2-3 Sheet No. 131 Side A 04/08/2016 13:04:55 A 04/08/2016 131 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 131 Side B 04/08/2016 13:04:55 M K PM PM

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159 ULLYING ULLYING B Is Litigation Litigation Is Four hundred and ORKPLACE ORKPLACE Id. ” . , W He also correctly 89:621 [Vol. 158 Florence Z. Mao, Note, Z. Florence (outlining the types and purposes of various purposes and types the (outlining

See generally, See generally, (2013) . Id.

679 Y ST. JOHN’S ST. JOHN’S REVIEW LAW ’ Mediation and Workplace Bullying Mediation and Workplace Further, if mediators receive the correct Further, if mediators receive : OL P 160

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, 21 ARINE Id. to the provision dispute alternative an adding suggest that In fact, some See WBISurvey (2011), Dr. Namie, who has critical role in drafting played a and Just as therapeutic jurisprudence principles improve the improve principles jurisprudence as therapeutic Just This Article’sDr. criticism from proposal also addresses

. 159 160 158 NST training and both employers and aggressors face liability for training and both employers matter incentive to resolve the their actions, they will have more than taking chances with athrough voluntary mediation rather observes that domestic violence cases do not go through do domestic violence cases observes that 2011 WBI survey found that following mediation, A mediation. while suffered no consequences, fifty-two percent of aggressors quit or were fired, and only seven thirty-three percent of targets any adversepercent of the aggressors suffered action at all. you to engage in mediation and/or arbitration to address your workplace bullying bullying your workplace to address arbitration and/or you to engage in mediation to 2 responses up Choose outcome? was the what situation, targets responded seventy-three I required your employer “If question: one of consisted Note the survey Jan. 24, 2013). 650 650 FINAL_N promoting workplace bullying legislation, raises valid points. promoting workplace bullying legislation, raises valid points. strongly mediation; it only require However, the SDWA does not recommends it. HWB would facilitate passage. passage. facilitate HWB would ADR mechanisms, including the EEOC mediation progam, and noting that many and noting that many progam, the EEOC mediation including ADR mechanisms, certain kinds of harassment and for mediation courts require federal state and claims). discrimination way judges in problem-solving courts address sensitive issues issues address sensitive courts in problem-solving way judges so toodomestic violence, and illness, to addiction, mental related who intermediate mediators benefit these principles would court like problem-solving Mediators, the workplace. in bullying creative to develop training also need additional judges, strategies in which to and mustsolve such unique disputes have of what causesan understanding and prompts bullying. The would, thus, already in place for judges training programs provide a programs for for establishing similar framework mediators. (“WBI”), the Workplace Bullying Institute Gary Namie of who first, because, cases in these mediation use of objects to the and, second, mandate mediation or arbitration employers often and, therefore, is of violence form he believes that bullying is a not an appropriate subject for mediation. Your Final Answer? Why the Healthy Workplace Bill Should Include an ADR Include Bill Should Healthy Workplace Why the Your Final Answer? Provision 37692-stj_89-2-3 Sheet No. 131 Side B 04/08/2016 13:04:55 B 04/08/2016 131 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 132 Side A 04/08/2016 13:04:55

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ONGRESS AND THE , http://www.eeoc.gov/eeoc/mediation/ , http://www.eeoc.gov/eeoc/mediation/ C Finally, although some factual factual some although Finally, 161 Questions and Answers Questions Remedies can include agreements to Remedies can OLE OF OMMISSION When Time Does Not Heal: Understanding the the Understanding Not Heal: When Time Does C R 162 HE T L. 880, 883 (2000) (discussing the delays in traditional traditional in delays the (discussing (2000) 883 880, L.

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E . ARINE HE See had a for mediations, charge does not the EEOC, which For example, Admittedly, the overlay of voluntary alternative dispute Admittedly, the overlay of voluntary The SDWA personnel in either an includes specially-trained 161 162 M K QUAL SYCHOL V. T A. Incentives for the States To Act and special training addsresolution costs that could provide opponents of new legislation. additional ammunition to the an incentive structure that Accordingly, this Article proposes requires Congress to appropriate funds to that pass a states strongly private sector employees and SDWA for version of the employees. The United encourages bills for state government qanda.cfm (last visited Aug. 9, 2015). visited qanda.cfm (last E 2015] in court. jury sympathetic potentially a also provides Mediation which courts, traditional resolution than more efficient quicker, faster. targets heal can help FINAL_N attend anger management or receive psychological counseling. or receiveattend anger management psychological counseling. resources to craft solutions have the TJ would in Those trained justice and the aggressor’s need target’s need for that address the for treatment. informal setting—mediation—or the target can a court so that internal company in a neutral setting if raise his grievances failed. In either ameasures have court or a mediation setting, to be heard and obtain some the target has the opportunity measure of redress without relying on Title VII’s traditional This proposal combines status-based harassment protections. the benefits of procedural justice with the concept of therapeutic jurisprudence. Importance of Avoiding Unnecessary Delay in the Resolution of Tort Cases Delay in the Resolution of Tort of Avoiding Unnecessary Importance P seventy-two percent settlement rate in 2008, and almost one-half of the cases cases of the one-half almost and in 2008, rate settlement percent seventy-two solution. a nonmonetary included scenarios may rule out mediation, experienced mediators experienced out mediation, may rule scenarios time when cases all the law handle employment successfully the imbalance and a perceived power there is issues are complex, emotional. sensitive, and courts for tort claims and arguing that certain kinds of tort claims should resolve resolve should claims tort of kinds certain that arguing and claims tort courts for can move defendants and plaintiffs so that trials through speedy more quickly lives). forward with their C Y 37692-stj_89-2-3 Sheet No. 132 Side A 04/08/2016 13:04:55 A 04/08/2016 132 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 132 Side B 04/08/2016 13:04:55

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(Feb. 9, 2011), ., 163 EMP ERV S note 36, at 1258 (noting that one risk factor for bullying for bullying that one risk factor 1258 (noting note 36, at , 22 T Bullying Across the Life Course: Redefining Boundaries, Redefining Boundaries, Life Course: Across the Bullying ST. JOHN’S ST. JOHN’S REVIEW LAW ERVICES S https://www.gov.uk/workplace-bullying-and-harassment (last

In fact, sixty percent of boys who bullied others others bullied who boys of percent sixty fact, In

, supra supra . 167 UK . UM RBITRATION H A OV note 40, at 700.

that address and adjudicate could disputes related to , G 3/29/2016

http://www.acas.org.uk/media/pdf/o/c/Bullying-and-harassment-at-work- 165

Harthill, Harthill, supra supra 164 ARINE Nancy J. Knauer, Nancy See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 124 Stat. Act, Pub. L. No. 111-148, Care Affordable and Protection Patient in Prevention by Investing Communities Healthier Building tribunals. have employment Wales and Scotland, England, For example, Although this Article’s proposal does not require it, some Article’s proposal does not require Although this 166 167 163 164 165 EALTH AND ONCILIATION assist communities in preventingassist communities disease and lowering the incidence of chronic many of which are caused conditions, by stress. could use the funding to train could use the funding to train judges,mediators and provide grants to small businesses that may not have resources to fund mental health programs or anger educate employees, and management classes. States would also benefit from using the funding to antibullying programs in develop more effective show that bullying can startstudies schools, as early and have justice system, which is overtaxed consequences for the criminal in most states. Responsibility, and Harm employment-tribunals (last updated Oct. 5, 2015); 5, 2015); Oct. updated (last employment-tribunals Harassment, bullying through the entire life cycle of a person from schools cycle of a person from schools the entire life bullying through care. and even through elder through employment, available at available a-guide-for-employees.pdf. Weddle, C H 652 652 in the bullying in reducing interest a vested has States High turnoverworkplace. make American medical costs and in the global competitive firms less The marketplace. federal costs through its medical a share of these also incurs government subsidies and through programs of various governmental subsidy Act (“ACA”), Affordable Care under the which to requires people insurance. procure health FINAL_N as children have been convicted of a criminal offense by their as children have been convicted of a criminal offense ofmidtwenties, with forty percent or more those having three is the perpetrator’s childhood development). development). childhood is the perpetrator’s facts/factsheets/2011/09/prevention02092011.html. facts/factsheets/2011/09/prevention02092011.html. 119, 145 (2010). 119, 145 (2010). Tribunal, to an Employment a Claim Make updated Nov. 12, 2014). As of April 2014, in the UK, employees must first go first go must UK, employees the in 2014, of April As 12, 2014). Nov. updated A the tribunal. to going before process early conciliation a free through states may use federal funding to establish specialized federal funding to establish states may use tribunals 37692-stj_89-2-3 Sheet No. 132 Side B 04/08/2016 13:04:55 B 04/08/2016 132 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 133 Side A 04/08/2016 13:04:55

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653 653 REVENTION AND P NJURY I pdf/bullying_factsheet.pdf (last (last pdf/bullying_factsheet.pdf Get To Know the Small Business Health Health Business Small Get To Know the ENTER FOR , C L ’

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, (July 1, 2015) https://www.irs.gov/Affordable-Care- (July 1, 2015)

This recognition could serve as a valuable note 40, at 649–50, 674, 677–78 (explaining that a number ofthat a number (explaining 674, 677–78 note 40, at 649–50, IRS 171

, There is no doubt that these young men commit men young that these doubt is no There supra supra STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 168 3/29/2016 http://www.cdc.gov/violenceprevention/

, ARINE Others in Congress have recognized the power of public recognition for firms. recognition of public the power recognized have Congress Others in Weddle, Bullying Understanding amending and credit; tax business a small receive businesses Certain Action Independent of the passage of any state laws, the federal the passage of any state laws, Independent of

171 168 169 170 M K ONTROL Act/Employers/Get-to-Know-the-Small-Business-Health-Care-Tax-Credit. Act/Employers/Get-to-Know-the-Small-Business-Health-Care-Tax-Credit. B. Incentives forCorporations To Act with or Without State and training also use the carrot of tax incentives government can grants and status, to of denial of government contractor the stick which already to do more. Smaller businesses, push companies receive some tax credits under the ACA, could a receive larger appropriateincrease after instituting to provide access programs services that victimsto the healthcare and bystanders need. Care Tax Credit Care Tax recruiting tool for new employees and could enhance a company’s recruiting tool for new employees reporting as well.corporate social responsibility updated Sept. 24, 2015). updated require companies with over $100 million in gross revenue to publicly disclose the the disclose to publicly gross revenue in $100 million over with companies require in their and child labor slavery, trafficking, human take to prevent they measures proposes also Maloney Representative reports. annual part of their as chains supply Chain Supply Business companies. of the top 100 complying the names listing 4842, 113th and Slavery Act of 2014, H.R. on Trafficking Transparency Sess. (2014). C 2015] convictions. FINAL_N both state and federal crimes; thus, and federal both state any program that reduces well. as federal government, costs for the rate lowers the crime theIndeed, youth bullying Control classifies for Disease Centers health problem. as a public states have antibullying statutes in the schools and that schools often lack the lack often schools that and the schools in statutes antibullying states have and administrators). funding for training for teachers The government can direct subsidies also provide for those employers without the policies, procedures, resources to develop lawand training to comply with the and publicly recognizecan firms that go above and beyond in developing innovative ways to combat bullying. Representative Carolyn Maloney has proposed a bill that would, among other things, things, other among would, that bill a proposed has Maloney Carolyn Representative increasing the amount would provide an incentive for smaller businesses to to businesses smaller for incentive an provide would amount the increasing programs. implement antibullying C Y 37692-stj_89-2-3 Sheet No. 133 Side A 04/08/2016 13:04:55 A 04/08/2016 133 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 133 Side B 04/08/2016 13:04:55

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ONG ONG See , W ONCLUSION , L The Worst of the Richie Incognito/Jonathan Martin Martin The Worst of the Richie Incognito/Jonathan VI. C ST. JOHN’S ST. JOHN’S REVIEW LAW (Feb. 14, 2014, 11:27 AM), http://www.sbnation.com/nfl/2014/ AM), http://www.sbnation.com/nfl/2014/ 11:27 2014, 14, (Feb. The President can issue an executive order executive issue an President can The Companies that do not establish a credibleestablish not that do Companies 172 173 ATION 3/29/2016 N Ryan Van Bibber, Bibber, Van Ryan

yet only one state has passed a law to protect workers. workers. has passed a law to protect yet only one state See ARINE In one of the most controversial bullying stories of 2014, a Miami Dolphins a Miami Dolphins of 2014, stories bullying most controversial In one of the The federal government spends $530 billion per year for goods and services. and year for goods per billion $530 government spends The federal issues. labor-related for an order such for issuing precedent is There 174 , SB Hardly a day goes by Hardly a day goes does not appear in the when bullying Finally, as the nation’s largest procurer procurer largest the nation’s as Finally, and of goods 174 172 173 program would be ineligible to bid on government contracts,bid on government to be ineligible program would serve as subcontractors on contracts of a certain size, and be contracts. renewal of existing ineligible for the Report http://libn.com/2014/04/16/the-legal-ramifications-of-workplace-bullying/. There was http://libn.com/2014/04/16/the-legal-ramifications-of-workplace-bullying/. were his he admitted of what advantage took his teammates that evidence the and under the HWB factor an aggravating as count which would vulnerabilities, SDWA. 654 654 FINAL_N requiring contractors to establish a robust program, whichrobust program, a establish contractors to requiring could fees for of mediation payment the among other things, include, all parties. Ramifications of Workplace Bullying Ramifications of Workplace 2/14/5411608/worst-of-the-richie-incognito-jonathan-martin-report-miami-dolphins. 2/14/5411608/worst-of-the-richie-incognito-jonathan-martin-report-miami-dolphins. http://www.whitehouse.gov/omb/procurement_mission (last visited Aug. 9, 2015). (last visited http://www.whitehouse.gov/omb/procurement_mission linebacker claimed that he was bullied by his teammates. Many of the alleged alleged of the Many teammates. his by was bullied he that claimed linebacker to able been not have would he likely as him; thus, the same race bullies were claim. VII a Title recover under Office of Federal Procurement Policy Procurement Office of Federal Exec. Order No. 11,246, 30 federal (Sept. 24, 1965)Fed. Reg. 12,319 (prohibiting from of $10,000 excess in contracts with subcontractors and contractors and origin national or sex, religion, color, of race, basis on the discriminating Order Exec. opportunity); employment equal ensure to action affirmative requiring 79 Fed. No. 1,365,879, Exec. Order 12, 1999); (June Reg. 32,383 Fed. No. 13,126, 64 for hour per of $10.10 wage minimum a (establishing 12, 2014) (Feb. Reg. 9,851 covered contracts). on contractors news, Through federal funding, the SDWA provides incentives for both head on. State to tackle bullying states and employers EU, Canada, and Australia for governments can look to the guidance on what has and has not worked. For example, France UK works with The mediation can play a role. that has shown stakeholder initiatives. Various unions and employers for joint a health and safety approach.EU countries and Canada use Neither the federal nor the state are equipped toOSHA agencies SDWA; but, OSHA inspectors handle the enforcement of the could also benefit from training so that they can recognize the services, the federal government has significant leverage in the leverage in the significant has the federal government services, marketplace. 37692-stj_89-2-3 Sheet No. 133 Side B 04/08/2016 13:04:55 B 04/08/2016 133 Side Sheet No. 37692-stj_89-2-3 37692-stj_89-2-3 Sheet No. 134 Side A 04/08/2016 13:04:55 PM PM

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655 655 STATUS-BLIND HARASSMENT STATUTE HARASSMENT STATUS-BLIND 3/29/2016 ARINE This Article builds on David Yamada’s groundbreaking work groundbreaking Yamada’s builds on David This Article M K 2015] during of bullying signs already-scheduled their investigations employees employers and then educate and and inspections learn may to tell, states early it is too law. Although about the Fair Work Commission. from Australia’s lessons and jurisprudence robust therapeutic a more by adding procedural Maetta Vance overlay. Under the SDWA, justice compensation injunctive relief or financial could have received State coworkers and the universityfrom her Ball as well as More from the worksite. her tormenters of sought the removal couldimportantly, Vance refuge in have found justice a system for relief but burdens impose insurmountable that does not on restoring dignity to the victim. instead focuses FINAL_N C Y 37692-stj_89-2-3 Sheet No. 134 Side A 04/08/2016 13:04:55 A 04/08/2016 134 Side Sheet No. 37692-stj_89-2-3