Workplace Bullying
Susan Harthill
Professor of Law
Florida Coastal School of Law
Outline
 Workplace
bullying
 definitions,
prevalence, costs
 Existing U.S. laws
 Focus on OSHA
 Shortcomings and potential solutions
 European,
Canadian & Australian
Law Reforms
Susan Harthill
Workplace Bullying Defined
 Repeated
offensive behavior through
vindictive, cruel, malicious or humiliating
attempts to undermine an individual or
group of employees.
 Range
of behavior, e.g., ostracism,
ridiculing, shouting and verbal abuse.
Susan Harthill
Helen Green v. Deutsche Bank
 burst
out laughing when she walked
past
 made crude and lewd remarks,
 moved her papers, hid her mail,
removed her from document circulation
lists,
 ignored and excluded her,
 undermined her and increased her
workload.
Susan Harthill
Helen Green
 developed
a major depressive disorder
 taken to hospital and put on suicide
watch
 suffered a nervous breakdown
 ultimately unable to return to work.
 There ought to be a law against this…is
there?
Susan Harthill
Prevalence (U.S.)

US (Employment Law Alliance 2007):
 44% of workers had been bullied
 64% believe an abused worker should
have the right to sue to recover damages
 WBI
2010
35% of adult Americans reported being
bullied now or at sometime in their careers
 15% witness it

Susan Harthill
Prevalence (U.K.)

UK
 2000 - 1 in 10 workers bullied in the last 6
months

Hoel & Cooper (2000)
 2007
-3.8% of British workers reported
being bullied or harassed at work in the
past 2 years

Grainger & Fitzner (DTI 2007)
Susan Harthill
Costs
 Individual

Organization
 Society
Susan Harthill
Stress-Related Physical Health
Complications (WBI 2007)
 Cardiovascular
problems: hypertension,
strokes, heart attacks
 Adverse Neurological changes:
neurotransmitter disruption,
hippocampus shrinkage
 Immunological impairment: more
frequent infections of greater severity
 Fibromyalgia, Chronic Fatigue
Syndrome
Susan Harthill
Psychological/Emotional
Injuries (WBI 2007)
 Debilitating
Anxiety, Panic Attacks
(>80%)
 Clinical Depression: new to person or
exacerbated condition previously
controlled (39%)
 Post-traumatic Stress (PTSD) from
deliberate human-inflicted abuse (30%
of targeted women; 21% of men)
Susan Harthill
Economic Costs (WBI 2007)
 Lost
ability to be left alone to do the
once-"loved job”
 Forced to transfer from loved job, often
a punitive transfer (13%)
 Constructively discharged without
reasonable cause (24%)
 Target quits to reverse decline in health
and sanity (40%)
Susan Harthill
No U.S. laws currently provide
recourse for targets of
workplace bullying
Susan Harthill
HWB - Florida
 HB
149 (Rep. Daphne Campbell)
 "Safe
Work Environment Act."
 Covers both public and private sector
 SB
308 (Sen. Oscar Braynon, II)
 “Abusive
Workplace Environment Act.“
 Protects only public employees

state agencies, counties, municipalities, political
subdivision, school district, community college
or state university
Susan Harthill
FL HB 149: Findings/purpose

Section 2(c): Workplace bullying 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.
Susan Harthill
OSHA
The OSH Act, OSH Administration
and NIOSH
OSHA - Purposes
 OSHA
§ 1:
 “To assure safe and healthful working
conditions for working men and women
… by providing for research,
information, education, and training in
the field of occupational safety and
health . . .”
Susan Harthill
OSHA – Findings
 OSHA
§ 2(a):
 “[P]ersonal injuries and illnesses arising
out of work situations impose a
substantial burden upon, and are a
hindrance to, interstate commerce in
terms of lost production, wage loss,
medical expenses, and disability
compensation payments.”
Susan Harthill
OSHA § 5(a)(1) – the general
duty clause
 Each
employer . . . shall furnish to each
of his employees employment and a
place of employment which are free
from recognized hazards that are
causing or are likely to cause death or
serious physical harm to his
employees
Susan Harthill
OSHA § 5(a)(2) – the
compliance clause
 Each
employer . . . shall comply with
occupational safety and health
standards promulgated under this Act.
Susan Harthill
OSHA – shortcomings?
 OSH
Act = is it a “toothless tiger” or an
“onerous ogre” (David Weil)?
 Physical harm required under general
duty clause
 Enforcement – no private cause of
action
 Penalties - limited
Susan Harthill
OHSA – potential?
 New
Governance principles – the third
way:
 Role
of the OSH Administration
 Role of NIOSH
 Focus
on:
 Costs
of workplace bullying
 Purposes of OHSA
 Comparative law
Susan Harthill
Comparative Law – A Risky
Undertaking
 Pitfalls
of comparative law generally
 Differences
in culture, politics,
development of law
 Pitfalls
of comparative workplace
bullying law
 European
dignitarian v. U.S. discrimination
models of harassment law
 But what about an “OSH” model?
Susan Harthill
Comparative Perspective
 ILO
 Studies
focus on violence (DiMartino
1998/2000)
 Approaches
 Use

existing law or torts, non-OSH
UK
 New

laws
France
 Amend

(Einarsen & Hoel):
OSH laws
Finland, Norway, Sweden, Australia, Canada
Susan Harthill
Sweden
 Widely
recognized as the leading
country on workplace bullying
 Part of the OSH law
 Shortcomings recently identified by
Einarsen & Hoel
 Comparable
to shortcomings of the US
OSHA regulatory apparatus
Susan Harthill
Norway
 2001
Inclusive Workplace Agreement
 Focusing
responsibility on the workplace
for reducing the flow of workers into
disability benefits, focusing on reducing
sickness absence
 2004
anti-bullying campaign was part of
this IW-Agreement
Susan Harthill
Canada
 Federal
efforts
 Saskatchewan
 Ontario
 (Quebec)
Susan Harthill
Australia
 State
OSH laws include mental
health/injury
 Some states appear to be specifically
addressing the issue. Examples:
 Victoria
- Proposed Code of Practice for
the Prevention of Bullying and Violence in
the Workplace
 Queensland - Workplace Bullying
Taskforce, Workplace Bullying: Issues
Paper (2001)
Susan Harthill
U.K. – a hybrid approach
 Existing
legislation
 Protection
 Existing
from Harassment Act
torts/common law principles
 vicarious
liability for violations of PHA
 Health
and Safety laws/regulations and
HSE management standards
 Focus
on STRESS v. bullying
 Self-regulation
and partnerships
Susan Harthill
Lessons for U.S.
 The
distinction between the European
“dignitarian” model v. U.S.
“discrimination” model of harassment
laws is not a complete picture
 The “OSH” model must be taken into
account when comparing U.S. and other
countries
 But
must also apply new governance
principles
Susan Harthill
 The
OSH model may have a place in
the U.S. development of workplace
bullying law
 Awareness
is a worthy goal
 Organizational problem v. individual
problem
 But, OSH law should be an integral part of a
holistic approach
Susan Harthill
DISCUSSION