What Does Massachusetts' Proposed Anti-Bullying Law Say?
If enacted, Bill S.1013 entitled "An Act addressing workplace bullying, mobbing, and harassment, without regard to protected class status" would be the first law of its kind in the nation.
Comprehensive in nature, Bill S.1013 is currently in Joint Committee on Labor and Workforce Development in the Commonwealth of Massachusetts.
Currently, an employee who is victimized by bullying and who wishes to take legal action must show a correlation to his or her protected class status such as race, color, sex, religion or national origin.
This law would serve as a gap filler because as its name states, it would prohibit workplace-based bullying generally and without regard to protected class status.
What specifically does this proposed legislation state?
Scope of the Problem.
First, the bill addresses the severity of workplace bullying as follows:
"At least a third of all employees will directly experience health-endangering workplace bullying, abuse, and harassment during their working lives, and this form of mistreatment is approximately four times more prevalent than sexual harassment alone..."
In terms of damage to victims, the bill states:
"Workplace bullying, mobbing, and harassment can inflict serious harm upon targeted employees, including feelings of shame and humiliation, severe anxiety, depression, suicidal tendencies, impaired immune systems, hypertension, increased risk of cardiovascular disease, and symptoms consistent with post-traumatic stress disorder."
Thus, a correlation between bullying and the impact it can and does have on victims is expressed.
Purpose of the Law
Second, the stated purpose of Bill S.1013 is:
(1) To provide legal relief for employees who have been harmed, psychologically, physically, or economically, by deliberate exposure to abusive work environments and
(2) To provide legal incentive for employers to prevent and respond to abusive mistreatment of employees at work.
Consequently, the bill is proactive in nature in that it strongly encourages employers to implement preventative policies and procedures to address abusive conduct while also giving those who suffer such mistreatment a private right of action to sue.
What types of workplace behavior would be banned under the Massachusetts law?
The bill defines “Abusive conduct” as
"...acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct, including, but is not limited to: repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance. It shall be considered an aggravating factor if the conduct exploited an employee’s known psychological or physical illness or disability. A single act normally shall not constitute abusive conduct, but an especially severe and egregious act may meet this standard."
Statute of Limitations
The victim of the abusive workplace conduct would be required to institute litigation no later than one year after the bullying occurred.
Furthermore, there is no pre-suit requirement that an action be filed with an administrative agency first such as in cases brought pursuant to the Age Discrimination in Employment Act or Title VII of the Civil Rights Act of 1964 which requires an employee to initiate an action with the Equal Employment Opportunity Commission before suing.
S.1013 creates a private right of action against the employer. The victim would be free to institute litigation in court so long as the one year statute of limitations did not run.
Affirmative Defense Available to Employers
The proposed law includes an incentive to employers to institute anti-bullying policies and procedures in the form of an affirmative defense.
It strongly resembles the affirmative defense which is available in sexual harassment litigation and is available where:
(1) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and,
(2) the complainant employee unreasonably failed to take advantage of appropriate preventative or corrective opportunities provided by the employer.
A successful employee in Massachusetts who prevails against an employer in a bullying cause of action under this proposed law may seek an impressive array of equitable as well as legal remedies.
According to the bill:
...the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate, including, but not limited to: reinstatement, removal of the offending party from the complainant’s work environment, back pay, front pay, medical expenses, compensation for pain and suffering, compensation for emotional distress, punitive damages, and attorney’s fees.
What does this all mean?
1) The employee who wins the case could ask for a court order requiring the defendant to stop the abusive conduct from occurring in future;
2) If the employee was terminated he or she could ask the judge to enter an order requiring the former employer to reinstate him or her into the former job AND require the abusive conduct from occurring in future;
3) The court also has the authority to enter an order removing the bully from the defendant's workforce;
4) The victim is entitled to reimbursement for loss of income in the form of back and front pay as well as compensation for pain and suffering and reimbursement of medical expenses related to the abusive conduct suffered.
5) In addition to actual damages, the bill also allows for "punitive damages." Punitive damages are sometimes regarded as monies the defendant must pay the victim to punish the defendant for allowing the conduct to happen in the past and to act as a deterrent from allowing it to occur in the future.
6) The bill also affords the opportunity for an award of attorney's fees for plaintiff's counsel who prosecute these cases on behalf of the victim.
For further information and to read Bill S.1013 in its entirety go here: