Chapter 2 Literature review part one: theoretical framework
2.6 Workplace harassment and the law: emerging global response
2.6.6 United States
The term ‘workplace harassment’ (bullying) did not begin to enter the vocabulary of American employment relations until the late 1990s. Awareness of the phenomenon has grown rapidly since then, but at present there are limited remedies for harassment targets under American law. However, advocacy groups and unions are beginning to organise around legal reform.
2.6.6.1 Tort claims for emotional distress
In the United States, the favoured, but seldom successful tort claim for emotionally abusive treatment at work has been Intentional Infliction of Emotional Distress (IIED).
Typically, plaintiffs have sought to impose liability for IIED on both their employers and the specific workers, often supervisors, who engage in the alleged conduct. The tort of IIED can be characterised as follows:
“The wrongdoer's conduct must be intentional or reckless.
The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality.
There must be a causal connection between the wrongdoer's conduct and the emotional distress.
The emotional distress must be severe” (Kroger Co. v. Willgruber, 1996).
Although the tort of IIED appears on the surface to be an ideal legal protection against workplace harassment, Kroger's extensive analysis of judicial decisions on IIED claims showed, according to Yamada (2000:83), that typical workplace bullying, especially conduct unrelated to sexual harassment or other forms of status-based discrimination, seldom resulted in liability for IIED. The most frequent reason given by courts for rejecting workplace-related IIED claims is that the complained-of
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behaviour is not sufficiently extreme and outrageous to meet the requirements of the tort.
Perhaps the most stunning example of this reasoning came in Hollomon v. Keadle, a 1996 Arkansas Supreme Court case that involved a female employee, Hollomon, worked for a male physician, Keadle, for two years before she voluntarily left the job.
Hollomon claimed that during this period of employment, "Keadle repeatedly cursed her and referred to her with offensive terms, such as 'white nigger,' 'slut,' 'whore,' and 'the ignorance of Glenwood Arkansas" (Yamada, 2000:87). Keadle repeatedly used profanity in front of his employees and patients and frequently remarked that women working outside the home were "whores and prostitutes.” According to Holloman, Keadle "told her that he had connections with the mob” and mentioned that "he carried a gun,” allegedly to "intimidate her and to suggest that he would have her killed if she quit or caused trouble.” Hollomon claimed that as a result of this conduct, she suffered from "stomach problems, loss of sleep, loss of self-esteem, anxiety attacks, and embarrassment.” On these allegations, the Arkansas Supreme Court ruled for the defendant Keadle, holding that Hollomon's failure to establish that Keadle was made aware of her peculiar vulnerability to emotional distress was fatal to her claim.
2.6.6.2 Collective bargaining and labour advocacy
Labour unions and the legal frameworks that protect collective employee action constitute potentially important avenues for addressing workplace harassment.
Organised labour remains one of the strongest and most vocal sources of advocacy on behalf of working people, and there are encouraging signs that some labour unions are responding to workplace harassment faced by their members. These unions are raising concerns about workplace harassment at the bargaining table and in grievances, and they are supporting efforts towards law reform.
An excellent example of labour advocacy in the United States came about in 2009, when a coalition of unions representing over 21 000 public employees proposed, negotiated and approved a new collective bargaining provision with the Commonwealth of Massachusetts that covers workplace harassment and abusive supervision (Yamada, 2009). Dubbed the "mutual respect” provision in the new contract, it is believed to be one of the first major American collective bargaining
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agreements to include express protection against workplace harassment. Under the provision, behaviours "that contribute to a hostile, humiliating or intimidating work environment, including abusive language or behaviour,” may be the subject of a valid grievance (Yamada, 2009:106).
There are, however, impediments to utilising unions and collective bargaining protection to combat harassment. Overall, union density in industrialised nations showed a steady decline during the last third of the twentieth century, with notable exceptions such as Sweden, unionised employees constitute less than half the wage and salary earners in the United States and in the Commonwealth of Massachusetts.
In addition, collective bargaining processes implicitly assume that major workplace conflicts are between employers and rank-and-file workers. Harassment scenarios between union members are not easily addressed through collective bargaining and labour advocacy. Proactive union leadership is required to take on these situations.
2.6.6.3 Workplace harassment legislation: The Healthy Workplace Bill
In response to the shortcomings of existing employment law for targets of severe workplace harassment Yamada (2000:475) in the United States, drafted a model anti-harassment legislation, now dubbed the Healthy Workplace Bill, which has been introduced in some 12 state legislatures.
The legislation declares that it "shall be an unlawful employment practice (…) to subject an employee to an abusive work environment,” which is found to exist "when the defendant, acting with malice, subjects the employee to abusive conduct so severe that it causes tangible harm to the employee” (Yamada, 2004:479).
Successful plaintiffs are able to recover lost wages and medical expenses, and even emotional distress and punitive damages, where merited.
Grassroots lobbying and advocacy effort on behalf of the Healthy Workplace Bill have both generated strong opposition from business trade associations and demonstrated the potential preventive impacts of such legislation. Organisations such as chambers of commerce are quick to oppose the bill in any state it is introduced. However, the growing possibility of enacting legislation has galvanised many lawyers who represent employers to advise their clients to develop workplace harassment policies as part of their human resources operations.
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