The Workplace Psychological Safety Act
Workplace psychological abuse is employee exploitation. Employers are not explicitly liable for the psychological harm of their employees — nor do they want to be. At its root cause is avoidance of employer liability. The status quo, employers are negatively incentivized to address the issue even if they claim to value safe workplaces. Employers choose to avoid a perceived threat of liability over human well-being.
The Workplace Psychological Safety Act (WPSA) takes that choice away and provides a cause of action for employees who suffer from workplace psychological abuse.
The WHY behind the bill:
There is no current law that protects workers from workplace psychological abuse. Unless you’re a member of a protected class (sex, race, age, etc.) under the Title VII of the Civil Rights Act — and can prove the abuse is from your protected class membership — you don’t have rights to psychological safety at work under law. Intentional Infliction of Emotional Distress (IIED) law requires victims to not only prove the abuser’s intent but also to show severe emotional distress, a near impossible threshold to prove.
Proving intent doesn’t work with anti-discrimination law — and it won’t work with mistreatment in general. Anti-discrimination law used to work when it focused on impact. The courts’ shift in the 1980s to a focus on intent has rendered anti-discrimination law nearly useless. It’s no secret it’s an epic failure. The WPSA does not require victims to prove their abuser’s intent, so it would strengthen protections for women and non-white workers who can prove discriminatory impact but not intent.
Workplace psychological abuse is an individual problem AND an organizational one. Courts treat anti-discrimination law, which psychological harassment and psychological abuse overlaps with, as an individual problem. But it’s a systemic problem often rooted in negative stereotypes and threats to power and control. The WPSA focuses on both individual recourse AND collective recourse to address the problem at the root: with employers. Employers control the work environment.
Oftentimes, employers don’t enforce their own policies or practice what they preach around training — and even retaliate against those who report abuse. There is no law stating employers have to follow their own policies. Tennessee passed a bill incentivizing workplace anti-abuse policies, and California passed a training-only bill. Neither are effective. Policy and training laws don’t work. In addition, workers compensation laws don’t recognize toxic work environments or psychological injury. They are employer-controlled and require employees to waive their right to sue. Employers know there are loopholes in the law. The bill will fill those loopholes.
Employers need accountability to make our workplaces psychologically safe. The WPSA creates an accountable incentive for employers to actually prevent and address workplace psychological abuse. The WPSA requires employers to do what’s right — and requires the public reporting of attrition rates and law violations to get in front of the health and economic harm to targeted and victimized employees before it can occur.
We can prevent harm of any kind. No law will eradicate an issue, but the goal is to prevent workplace psychological abuse as much as possible. Prevention means not waiting until harm occurs (not just psychological or physical harm). Sexual harassment law acknowledges a hostile work environment is enough for legal recourse. The WPSA sets its baseline for a legal claim at a toxic work environment, consistent with sexual harassment law.
A remedy must be available to all workers. There is no current law that protects workers from workplace psychological abuse. Unless you’re a member of a protected class (sex, race, age, etc.) under the Title VII of the Civil Rights Act — and can prove the abuse is from your protected class membership — you don’t have rights to psychological safety at work under law. Making abuse illegal regardless of protected class status while giving more protections to members of protected classes — and putting it under its own agency — would lessen the EEOC and state agency backlogs and lessen the burden on the courts.
WHAT the bill WILL DO
It gives targeted employees legal recourse for employers creating a toxic work environment with a focus on specific, common behaviors that a reasonable person would deem toxic. Right now, it’s perfectly legal to be abusive at work in the U.S., even though it’s illegal in most of the industrialized world. Employers simply have way too much power. Targeted employees will be able to:
- File a restraining order against the employee who violates this Act depending on state law.
- Call for an internal investigation.
- Bypass a rigged internal process by calling for an investigation by OSHA or a similarly charged state commission, with positions funded by employers themselves so they’ll stop passing the costs of employee well-being onto taxpayers.
- Sue the employer and/or individual(s) in violation of this Act directly for economic, compensatory, and/or punitive damages and attorney’s fees. Employees can also sue criminally and choose to anonymously publicly disclose the case outcome, removing employers’ ability to silence them with non-disclosure agreements.
It requires employers to acknowledge, monitor, detect, prevent, discourage, and adequately address incidences of psychological abuse. Employers will no longer be allowed to sweep abuse at work under the rug and pretend they’re following protocol while ignoring abuse or retaliating to avoid liability. They’ll be required to:
- Adopt and implement policies and training
- Conduct an annual anonymous workplace climate survey to monitor the prevalence of abuse in their workplaces
- Start third-party investigations within five business days and complete them within 30
- Take responsibility if the outcome favors the targeted employee, including minimally issuing an apology, reinstating work, and coaching, counseling, or disciplining the employee who engages in toxic conduct. Discipline may include removing supervisory duties or termination.
It doesn’t pretend this issue is only an individual one. It also goes after the root issue: the oppressive, dehumanizing system that reinforces positive stereotypes for men, white workers, and high-wage workers and negative stereotypes for women, people of color, low-wage workers, and other groups considered “other” by the dominant groups. It calls for organizational accountability: the quarterly reporting of the number of discrimination and psychological abuse complaints and discipline, workers’ compensation claims, absenteeism rates, termination rates, stress leave rates, attrition rates, investigation rates, followup action rates, the workforce gender and racial makeup, and de-identified wage and salary data by protected category to government agencies for public access.
Why discrimination law is ineffective at protecting workers from bullying and mobbing
It’s no secret discrimination law is ineffective at protecting workers from mistreatment in the American workplace. Bullying and mobbing are forms of psychological abuse that make our work environments unsafe. It’s time to fill the gap.
There is no denying mistreatment at work has a discriminatory impact. According to the 2016 EEOC Select Task Force for the Study of Workplace Harassment Report, “During the course of fiscal year 2015, EEOC received approximately 28,000 charges alleging harassment from employees working for private employers or state and local government employers.” Their findings:
- “…anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace.”
- “…70% of the respondents reported experiencing some form of verbal harassment and 45% reported experiencing exclusionary behaviors [in a survey regarding racial and ethnic harassment].”
- “35% of LGB-identified respondents who reported being ‘open’ at work reported having been harassed in the workplace.”
- “…20% of respondents with disabilities reported experiencing harassment or unfair treatment at work because of their disability.”
- “…8% of respondents reported having been exposed to unwelcome comments about their age.”
If you are not in a protected class, you have even less protection in the American workplace when it comes to bullying and mobbing.
Workers deserve psychologically safe work environments.
(Title VII of the Civil Rights Act, Pregnancy Discrimination Act, Age Discrimination in Employment Act, and Americans with Disabilities Act)
|The Workplace Psychological Safety Act (WPSA)|
|Protects all people from mistreatment?||NO. Harassment isn’t illegal unless targeted employees are members of a protected class (race, color, national origin, gender [including sexual orientation and identity], religion, age status over 40, and disability) under the Title VII of the Civil Rights Act (and groups covered under state EEO laws) and can PROVE the abuse is connected to their protected class membership.
Employees who are not members of a protected class have no protection against workplace harassment or any other psychologically abusive behavior.
|YES. The WPSA will provide a positive right to dignity and any other human rights in the workplace, making all forms of harassment in the workplace unlawful.|
|Requires employers to resolve harassment issues?||NO. More often than not, employers fail to address issues IMMEDIATELY, an indicator of a toxic work environment and potential health and life endangerment. Because employees see a lack of effective handling of complaints, fewer than half of targets make a complaint and/or file a formal report, leaving targets of mistreatment with no adequate protection and the social hierarchies based on demographics intact (EEOC Select Task Force for the Study of Workplace Harassment, 2016).|
Employees who file harassment (bullying) reports most often report a lack of success, including retaliation (Namie and Namie, 2009):
|YES. The WPSA provides a full and complete remedy, recognizing the creation of a toxic work environment with a reasonable person standard. It also includes remedies for low-wage workers, who are often left out of our pay-to-play legal system yet suffer from higher rates of mistreatment.|
|Eliminates the hurdle of intent?||NO. Circuit courts have largely required proof of discriminatory intent, and a sexual nature in gender cases, ignoring control involved in gender-based harassment and equal opportunity mistreatment. Though there is no intent standard, supported by Scalia’s statement in the Oncale case, “the critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”||YES. The WPSA requires a baseline of proof of damage to the work environment. Intent involves additional damages but is not required for a legal claim.|
|Incentivizes employers to change?||NO. Employers have to show reasonable care that they prevented and promptly corrected harassing behavior AND the employee failed to take advantage of preventive or corrective opportunities or to avoid harm otherwise. Avoiding harm otherwise has been largely ignored by Circuit and District Courts, and little has been done to define what steps employers should take (reporting, investigations, and remediation). So employers set the standard for reasonable measures to maintain the status quo, not the best interest of the employee.||YES. The WPSA provides a strong incentive for employers to make the work environment psychologically safe, prioritizing human rights.|
Other existing laws that don’t adequately protect workers from mistreatment:
|Common Law (Intentional Infliction of Emotional Distress)||Pay-to-play. Only protects workers who can prove a perpetrator INTENDED to cause SEVERE harm. Rarely are claims successful.|
|Workers Compensation||Only covers those out of work. Employers approve/deny claims to keep premiums down. Psychological harm, psychological abuse, and toxic work environments are generally not recognized or covered.|
|Unemployment Compensation||Covers only those who are unemployed and is limited and not guaranteed. No one should have to leave their job to be compensated.||OSHA||Focuses only on physical hazards, which it struggles to enforce.|
in the news
“Workplace Psychological Safety Act Could Set National Precedent”
November 28, 2023
“Mass. bill aims to create psychologically safe workplaces”
New England Biz Law Update
October 24, 2023
“Bullying, Introverts, And Stereotypes: 11 Persistent Signs Of Toxic Work Environments”
September 5, 2023
“Psychological safety bill advances in Rhode Island legislature“
Safety & Health Magazine
June 21, 2023
“Rhode Island lawmakers introduce workplace psychological safety bill“
May 31, 2023
“Workplace Psychological Safety Act: Combatting Bullying in the Workplace“
February 9, 2023
“Oregon legislators urged to support Workplace Psychological Safety Act“
Jefferson Public Radio
January 30, 2023