The bill

Benefit

Discrimination/Harassment Law
(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 make all forms of toxic behavior 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):

Reports to HR lead to worse outcomes.

The most likely outcome for employees who report psychologically abusive behavior is job loss (voluntary or involuntary).

Employers are not liable for psychologically abusive behaviors — nor do they want to be.

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 a remedy 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.