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) provides a cause of action for employees who suffer from workplace psychological abuse.
THE WHY BEHIND THE BILL
1. 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.
2. 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 Workplace Psychological Safety Act does not require victims to prove their abuser’s intent, so it would strengthen protections for women and workers of color who can prove discriminatory impact but not intent.
3. 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 by themselves 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.
4. Employers need accountability to make our workplaces psychologically safe. The Workplace Psychological Safety Act creates an incentive for employers to prevent and address workplace psychological abuse and uphold psychological safety.
5. 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.
6. 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 would help prevent workplace psychological abuse.
WHAT THE BILL WILL DO
It’s time to say we’re not going to allow our government to tolerate abuse at work. Just as our government steps in with abusive families, our government needs to take action with toxic employers.
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 sue the employer and/or individual(s) in violation of the Act directly for damages and attorney’s fees. Employees can also choose to anonymously publicly disclose the case, 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.
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.”
(https://www.eeoc.gov/select-task-force-study-harassment-workplace)
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.
Frequently Asked Questions (FAqs)
Q: Isn’t the definition of “psychological abuse” too vague and subjective, leading to enforcement challenges?
A: The legislation defines “psychological abuse” with a “reasonable person” standard, a widely recognized legal concept. This standard ensures that claims are assessed based on how an objective person would perceive the behavior, rather than relying solely on subjective interpretations. Courts and employers already apply similar standards for harassment and discrimination cases, demonstrating that such definitions can be applied effectively.
Q: Won’t the legislation create an unreasonable financial and operational burden for businesses, particularly small businesses?
A: While the bill introduces new requirements, these are investments in healthier and more productive workplaces. Toxic environments cost businesses through higher turnover, lower morale, and legal disputes. Small businesses will benefit from clear policies and preventive measures that reduce workplace conflicts. Resources, templates, and phased implementation options can further support compliance, ensuring the process is manageable.
Q: Will this legislation lead to an increase in lawsuits, penalties, and workplace chaos?
A: The purpose of the law is to reduce workplace conflict by promoting clear policies, proactive training, and early resolution of issues. Similar laws in other jurisdictions have shown that preventive measures decrease disputes, as employees better understand acceptable behavior and have structured avenues for resolving concerns internally before they escalate into litigation.
Q: Do existing laws and protections make this legislation unnecessary?
A: Current laws address discrimination, retaliation, and some forms of harassment but do not comprehensively cover workplace bullying or psychological abuse. This legislation fills the gaps by creating preventive frameworks and establishing protections for all employees, regardless of protected status. It complements existing laws and ensures a broader focus on respect and well-being in the workplace.
Q: Will this legislation create fear in workplaces, discouraging collaboration?
A: On the contrary, the legislation fosters professionalism and respect, encouraging positive workplace relationships. By setting clear behavioral expectations and providing training, employees and managers can communicate more effectively. This creates a healthier, more collaborative environment, reducing misunderstandings and conflicts.
Q: Are small businesses unfairly targeted by this legislation?
A: Small businesses are not disproportionately burdened. The legislation includes flexible guidelines that can be adapted to the size and type of organization. Clearer policies and training help small businesses prevent workplace issues that could otherwise lead to costly disputes, creating a more stable and positive work environment.
Q: Does the legislation unfairly place the burden of proof on employers?
A: The legislation balances responsibilities by requiring employers to implement reasonable measures like policies and training to prevent workplace abuse. These proactive steps reduce the risk of conflicts and provide businesses with clear records of compliance. This approach helps protect both employers and employees by fostering a safe, respectful workplace.
Q: Does this legislation primarily benefit trial lawyers by encouraging lawsuits?
A: The focus of the legislation is on prevention, not litigation. By requiring proactive measures like training and clear complaint-handling processes, the law minimizes misunderstandings and reduces the need for legal action. Employers that comply with the law and prioritize respectful workplaces are less likely to face lawsuits, as most issues can be resolved internally.
| 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. |