Photo: Uber.com/media
Photo: Uber.com/media

On June 13, 2017, Uber released to its employees excerpts of a damning independent investigation report authored by independent investigators Eric Holder and Tammy Albarran, attorneys with the law firm of Covington & Burling LLP.  On February 19, 2017, former Uber engineer Susan Fowler published a blog post detailing allegations of harassment, discrimination and retaliation at the company during her tenure.  She also decried the ineffectiveness of Uber’s policies and procedures in addressing such workplace issues.  The very next day Uber hired Former Attorney General Holder and his law firm to conduct a review of  the issues raised by Fowler as well as diversity and inclusion more broadly at Uber. Continue Reading Holder’s Advice to Uber: Focus on Tone at the Top, Trust, Transformation and Accountability

On February 3, 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it would extend the notice and comment period for its proposed enforcement guidelines on unlawful harassment under EEOC-enforced employment discrimination laws.  The extension, which provides an additional forty (40) days for public input, gives in-house counsel and human resources professionals a good opportunity to review and familiarize themselves with the standards by which the EEOC is likely to evaluate harassment-based discrimination claims.

The EEOC’s proposed guidance (“Guidance”), released on January 10, 2017, follows up on the agency’s June 2016 Report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace (“June 2016 Report”).  The June 2016 Report found that discriminatory harassment remains a pervasive problem in the American workforce, amounting to almost a third of all discrimination charges the EEOC received in FY 2015.

The Guidance outlines the agency’s position, with accompanying caselaw, on the following topics related to discriminatory harassment:

  • Covered bases for discrimination. The Guidance identifies certain bases for harassment that, in the EEOC’s view, may amount to unlawful race, national origin, religious, sex, age, disability, or genetic information. Examples include black hairstyles (race discrimination), sexual orientation and/or gender identity (sex discrimination), and foreign accent or cultural diet (national origin discrimination).
  • Establishing Causation. The Guidance sets forth several examples of harassment the EEOC considers to be sufficiently “connected” to a protected classification, such as: derogatory or hostile comments regarding a protected classification, whether or not the comments are directed against a specific employee; ostensibly neutral conduct that is related to an overall pattern of class-based harassment; harassment that begins or escalates shortly after learning of the complainant’s protected status; and higher productivity standards for women as compared to similarly situated male employees.
  • “Severe” or “pervasive” harassment. In explaining when conduct is sufficiently severe and/or pervasive to amount to unlawful harassment, the Guidance identifies certain actions that could create a hostile work environment even if they occur only once: sexual assault, sexual touching of an intimate body part, physical violence or threats, use of symbols of violence or hatred, use of the “n-word” by a supervisor, use of animal imagery, and threats to deny job benefits for rejecting sexual advances.
  • Subjectively and objectively hostile work environment. In its Guidance, the EEOC agrees that a harassment plaintiff must establish that s/he actually and reasonably perceived the conduct to be severe or pervasive. The EEOC disagrees, however, with the various U.S. Circuit Courts of Appeals that have required plaintiffs to separately establish that the harassing conduct was “unwelcome.”  The Guidance also notes that the EEOC does not consider “prevailing workplace culture”—i.e., a longstanding workplace habit of engaging in relatively crude, coarse, or vulgar conduct—to excuse conduct that would otherwise amount to unlawful harassment.
  • Relatedness of the harassing conduct to the work environment. The Guidance discusses when the EEOC will find conduct that occurs outside an employee’s regular place of work, or in a non-work-related context, as contributing to a hostile work environment for which the employer may be held responsible.  Among other examples, the Guidance states the EEOC might consider conduct on a private social media platform as contributing to a hostile work environment if coworkers discussed the conduct in the workplace—even if the social media postings occurred during non-working time.
  • Supervisor/coworker liability. The Guidance reiterates the four standards of harassment liability based on the relationship of the harasser to the employer:
    • The employer’s proxy or alter ego (strict liability);
    • The employer’s supervisor who engages in a “tangible” employment action against the victim (vicarious liability);
    • The employer’s supervisor who engages in harassment but does not engage in a “tangible” employment action against the victim (vicarious liability, subject to the affirmative defense that the employer exercised reasonable care to prevent and correct harassment and the employee failed to take advantage of any preventive or corrective opportunities);
    • Non-supervisors (liability if the employer negligently failed to prevent or correct the harassment).
  • Systemic harassment and pattern-or-practice claims. The Guidance explains the theories of systematic or widespread discrimination, in which the employer subjects all employees of a protected group to the same discriminatory circumstances in the workplace as a whole.
  • Best practices to prevent harassment. The Guidance reiterates the holdings from the EEOC’s July 2016 Report, including five principles for preventing and addressing harassment: committed and engaged leadership; consistent and demonstrated accountability; strong and comprehensive harassment policies; trusted and accessible complaint procedures; and regular, interactive training tailored to the audience and the organization.

Public comments originally were due by February 9, 2017, but the EEOC has now extended the deadline until March 21, 2017.  The agency already has received approximately 70 comments from individuals and organizations.  Comments are publicly posted, and may be submitted and viewed here.

Megyn Kelly
Photo: Robert Deutsch, USA TODAY

Words spoken yesterday morning by Fox News personality Megyn Kelly during an interview by George Stephanopoulos on Good Morning America.  Kelly was asked about the lawsuit filed by her former Fox News colleague Gretchen Carlson against former CEO Roger Ailes and Kelly’s own experiences with Ailes a decade ago.  According to Kelly, and as described in her new book, Ailes sexually harassed her and tried to entice her to engage in a sexual relationship.  She rebuffed his advances, called a lawyer and notified her immediate supervisor.  The supervisor vouched for Ailes and told Kelly the behavior was out of character and also advised Kelly to “ignore him.”  Kelly did just that, something relatively easy for her to do since she was assigned to the network’s Washington office and Ailes was in New York.  After about six months of being ignored, Ailes moved on, and he and Kelly had a cordial and mutually beneficial professional relationship until he left the network.

When pressed as to whether she regretted not having come out publicly about his advances ten years ago, Kelly told a story remarkably similar to that which women in workplaces tell every day.  First, she wasn’t sure that this wasn’t an isolated incident, especially given her supervisor’s statements and advice, which seemed to work.  Second, in her eyes, she had no one to go to.  She had barely a year’s tenure at the station, and Ailes, the CEO, was one of the world’s most powerful men.  She had done more than many women in her place might have done, but going above Ailes’ head to the owners or going to the general counsel would have been “a suicide mission” for her career.  She told Stephanopoulos the obvious, “I wasn’t the same Megyn Kelly then as I am now.”

Kelly’s responses are consistent with what many women who are victims of harassment say.  Why didn’t she speak out sooner?  Why didn’t President-Elect Trump’s accusers come forward years ago?  They didn’t know there were others; they didn’t have anyone they could safely tell; they didn’t think they would be believed.

The stories of Carlson, Kelly and countless other female employees at Fox put an exclamation point on the findings of an EEOC task force which spent a year studying the issue of workplace harassment.   They issued a report in June 2016, entitled  Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace”  which concluded that sexual harassment remains a significant workplace issue.  Among a great deal of information, the Report provides practical resources, including checklists and a “risk factor” analysis, to help employers assess their organization and respond appropriately to troubling behavior.

Reviewing the risk factor analysis is a necessary first step for employers looking to address this important workplace issue.  The task force focused on what they viewed to be environmental factors, organizational factors or conditions that might increase the likelihood of harassment rather than on the qualities that might lead one to be a likely victim or a likely harasser.  The Report says:

Most if not every workplace will contain at least some of the risk factors we describe below. In that light, to be clear, we note that the existence of risk factors in a workplace does not mean that harassment is occurring in that workplace. Rather, the presence of one or more risk factors suggests that there may be fertile ground for harassment to occur, and that an employer may wish to pay extra attention in these situations, or at the very least be cognizant that certain risk factors may exist. Finally, we stress that the list below is neither exclusive nor exhaustive, but rather a number of factors we felt were readily identifiable.

What follows is a list of some of the risk factors identified.

  • Homogenous Workforces: Sexual harassment  of women is most likely to occur in workplaces with primarily male employees; racial or ethnic harassment is more likely to occur where one race or ethnicity is predominant.
  • Workplaces Where Some Workers Do Not Conform to Workplace Norms: A feminine man in a predominantly male environment where crude language is common; a woman who challenges stereotypes by being “tough.”
  • Cultural and Language Differences: Diverse workplaces where “blocs” of workers from different cultures congregate; workers may not know the cultural norms of the workplace or their rights and be subject to exploitation.
  • Coarsened Social Discourse Outside the Workplace: Events outside the workplace like terrorist attacks and controversial elections may lead to discussions previously deemed unacceptable at work.
  • Workforces with Many Young Workers: Young workers who lack the maturity to understand the consequences of their behavior; unskilled or inexperienced young people who may be taken advantage of.
  • Workplaces with High Value Employees: Where some workers are viewed as highly valuable to the employer due to significant rainmaking or sales ability or particular highly sought after skills, there may be a reluctance to challenge poor behavior combined with a belief of the employee that the rules do not apply to them.
  • Workplaces with Significant Power Disparities: Executives and administrative staff, military or hierarchical organizations, the lack of knowledge of how to report or the fear that reporting may lead to the loss of a job.
  • Workplace Cultures that Tolerate or Encourage Alcohol Consumption: Reduced inhibitions, clients or customers feeling emboldened by alcohol.
  • Workplaces that Rely on Customer Service or Client Satisfaction: Entities where compensation is directly tied to customer service or client satisfaction, a tipped employee or a commissioned salesperson.

Employers should challenge themselves to look at these and the other risk factors set out in the Report to determine whether they are at risk for harassment issues.  They should review not only their policies, but how their policies are implemented and whether employees, including high level management employees, are held accountable for their behavior. Not only will such self-examination reduce the risk of litigation, it is good business with a direct link to recruiting and retaining talented and motivated employees.

Former Fox News Anchor and commentator Gretchen Carlson filed a sexual harassment suit against CEO Roger Ailes alleging that her contract was not renewed because she refused Ailes’ sexual advances.  Carlson also alleged that the harassment she endured was severe and “very pervasive”, that Ailes repeatedly “injected sexual and/or sexist comments” into conversations and made “sexual advances.” Finally, when she told him  last fall to stop, a preventative measure women are often urged to take, Ailes is alleged to have responded, “ I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better.”

Carlson’s lawsuit contains the following additional allegations:

  • She tried to complain unsuccessfully about how male colleagues, including Fox & Friends co-host Steve Doocy treated her.
  • Doocy “engaged in a practice of severe and pervasive sexual harassment of Carlson, including, but not limited to, mocking her between commercial breaks, shunning her off air, refusing to engage with her on air, belittling her contributions to the show, and generally attempting to put her in her place by refusing to accept and treat her as an intelligent and insightful journalist rather than a blond female prop.”
  • Following her complaint about Doocy, she was removed from the popular morning show Fox & Friends and relegated to a less desirable 2:00 p.m. time slot.
  • Ailes referred to her as a “man hater” and told her to “get along with the boys.”

This is not a story from the 1970’s; this is a story from this week. It also comes on the heels of a June 2016 report issued by an EEOC task force which concluded that workplace sexual harassment training initiatives are often ineffective in stopping misconduct.  “Much of the training done over the last 30 years has not worked as a prevention tool,” the EEOC commissioners wrote, adding that “ineffective training can be unhelpful or even counterproductive”. The clear message of the report is that the most common trainings are designed to minimize legal risk to companies rather than change behavior in supervisors or employees.  “Sexual harassment training protects organizations, not employees” according to Berkeley Law Professor Lauren Edelman.

Carlson is not a young innocent ingénue; she is a 50 year old professional woman, a graduate of Stanford University and someone who has reached a coveted spot in her chosen field by hosting a program on a national news network.  Even though she is constantly referred to in the media as a former Miss America, she has done quite a few things with her life since.

What do Carlson’s suit and the EEOC’s report tell us about today’s workplace for women?   Maybe that we haven’t come as far as we thought we had.  Assuming Carlson’s allegations to be true, and it should be noted that they are currently being vigorously disputed, it signals the need for careful reexamination of workplace culture, expectations and action. Those of us who devote a large percentage of our professional work lives to risk management and training, need to take the initiative to develop programs which will help to shift workplace culture and truly influence the way people treat each other.  Perhaps even more important, employers must not only invest in training, they must “walk the walk.”  Employees need to feel that they can trust management to act when they report that bad things happen to them, rather than to stand in fear of retaliation.  Supervisors who protect employees who breach policy need to held accountable for what they are doing (or not doing).

What does Gretchen Carlson say about her lawsuit?

“Although this was a difficult step to take, I had to stand up for myself and speak out for all women and the next generation of women in the workplace.”  You’ve come a long way baby, but you still have a long way to go.

Photo Credit: Kelly Schott via Flickr (CC by ND 2.0)

Headlines about Ray Rice and the NFL remind us all that domestic violence does not stop at the door of an employee’s home.  It is a serious crime and one that has lasting impacts on those affected by it.  This post provides guidance and information on what employers should know about domestic violence.

Domestic violence can happen to anyone, regardless of age, gender, marital status, socio-economic status, sexual orientation, or ethnicity/race.  It is a pattern of coercive behavior by one person over another.  It may include physical or sexual violence, stalking, or verbal, psychological, or economic abuse.  NH law protects persons who are victims of domestic violence.  There are also stalking and harassment laws.

When dealing with victims of domestic violence, employers should be flexible in allowing time off from work for medical treatment or court appearances.  NH requires leave for victims of crimes under the Crime Victim Leave Act, RSA 275:61-65.  Under this law, a victim of a crime may leave work to attend court or other legal or investigative proceedings associated with the prosecution of the crime.  A victim is broadly defined and includes the immediate family of any victim who is a minor or who is incompetent or the immediate family of a homicide victim.  The Act applies to employers with 25 or more employees.

Other laws may also be implicated when it comes to employees who are victims of domestic violence, such as reasonable accommodations due to a disability under the Americans with Disabilities Act (ADA) or the New Hampshire Law Against Discrimination.   (see guidance from EEOC)   Leave or intermittent leave under the Family Medical Leave Act (FMLA) may also be required.  (see guidance from US Department of Labor)  Also know that employers have a general duty to provide employees with a safe work environment and should have practices and policies in place consistent with this obligation.

No workplace is immune from the potential for workplace violence.  To be effective, companies should have a domestic violence policy, must develop a safety plan, be aware of studies of violence and domestic violence, and implement comprehensive training and educational programs for both management and employees.  Companies, on a regular basis, can make efforts to educate employees and make them aware of domestic violence.  Companies can put up posters in break or lunch rooms to let employees know where they or someone they know can reach out and seek help.  Referral to an EAP program is also an option.

An appropriate policy should include a policy statement regarding the company’s stance on domestic violence and should offer employees resources to increase their awareness of domestic violence to further reduce the impacts on the workplace.  The policy should also include a statement that violence of any kind in the workplace will not be tolerated and can lead to immediate disciplinary action up to and including termination.   Additionally, requiring an employee to inform the company when he or she obtains a retraining order from a court allows an employer to take steps to keep everyone in the workplace safe.

For organizations that do not currently have a policy addressing workplace violence prevention, more information is available through the Federal Government’s Office of Personnel Management, or for smaller businesses, through the U.S. Chamber’s Small Business Center.

Sample policies addressing domestic violence are available at the Corporate Alliance to End Partner Violence.  The NH Coalition & Crisis Management also has helpful information, which includes a list of crisis centers.  Information can also be found at the Department of Justice’s Violence Against Women division.

The New Hampshire Commission for Human Rights has released data on discrimination charges filed by employees in 2013.  Last year, the Commission received 222 discrimination charges against employers.  This number was slightly down from the year before at 257.  Retaliation across all categories topped the list at 93 claims.  Following closly behind with 89 charges was disability discrimination.  There were 64 claims based on sex discrimination and 31 claims based on age.  Of the sex discrimination claims, the charges included 17 gender, 36 harassment, and 11 pregnancy.

The Commission found probable cause to proceed with a hearing in 3 cases — 2 for disability discrimination and 1 for sex (pregnancy) discrimination.   No probable cause was found in 37 of the cases.  Additionally, 13 cases were removed to federal court; 34 were removed by the complainant to state court and 2 were removed by the respondent to state court.  The Commission closed 199 cases in 2013.

With the report of these statistics, it is a good time for employers to review, redistribute, and reinforce their anti-harassment and non-discrimination policies to all employees.  Employers should confirm their handbooks cover all protected categories under federal and state laws.  Companies should also provide training for employees on their nondiscrimination and anti-harassment policies.  Supervisors and managers need to be trained on the policies as well as receive an overview of the laws relevant to the workplace.  All of these steps can help companies safeguard against liability for harassment and discrimination in the workplace.

Even when an employer takes prompt remedial action to defeat a sexual harassment claim, it may still be liable for retaliation.  A NH employer was reminded of this recently in Rand v. Town of Exeter (11-CV-55-PB) (10/2/13).

Brenda Rand worked as a solid waste transfer operator for the Town’s Highway Department.  Rand alleged that a coworker sexually assaulted her one morning at the transfer station when both were alone.  Rand confided in a coworker 5 days after the incident and then reported it to the HR Director and her supervisors.

To prove sexual harassment by a coworker, an employee must show that the employer knew or should have known of the harassment yet failed to take prompt remedial action.

On a motion for summary judgment filed by the employer, the federal trial court found that the Town had taken prompt and remedial action when it learned of Rand’s complaint.  As the Court explained, the company HR Director conducted an investigation into the allegations, prohibited the alleged harasser from going to Rand’s worksite during the investigation, and had interviewed 3 of the witnesses within 3 days of learning of the complaint and had a report prepared 5 days after the final interview.  The Town informed Rand of the investigation outcome two weeks later.

The Court noted that while Rand disagreed with the Town’s internal investigation outcome, the issue as to employer liability is whether the employer is negligent in allowing the harassment to occur and whether the employer took reasonable steps to respond.  Here, the Town had an anti-discrimination policy, no reason to anticipate the alleged assault, and took prompt and effective action to respond to and investigate Rand’s complaint.  As a result of the steps taken by the employer, the federal Title VII and state harassment claims were dismissed.

As this case shows, anti-discrimination policies and effective internal investigations play important roles in protecting companies from workplace liability.  Taking complaints seriously, dealing with them objectively and promptly, and taking appropriate remedial measures, if necessary, following the investigation may shield employers from claims.

Unfortunately for this employer, the case is not done.  While the harassment claims were dismissed, the Court allowed Rand’s retaliation claims to continue.   Rand had produced sufficient evidence to support her complaint, including negative performance reviews and reprimands after her complaint and evidence employees were told to avoid her.  Additionally, the Town placed Rand on administrative leave and refused to turn over her personnel file shortly after Rand filed an EEOC complaint.  As the Court explained, motive and intent are better suited for the jury, and a trial has been scheduled for February 2014.

With retaliation at the top of the list of discrimination filings, employers must take heed.  An employee may lose on the underlying discrimination claim and still be successful on the retaliation claim for conduct occurring after the complaint. Employers should have strong policies against retaliation and should train all supervisors and employees on this prohibited conduct.  Do not learn this lesson the hard way.

 

The US Supreme Court in the case of Vance v. Ball State University issued on June 24, 2013 decided the question of who qualifies as a “supervisor” in a Title VII claim of harassment based on race.  The decision has been anxiously awaited because it impacts the standard by which an employer’s liability will be measured.

Under Title VII, a company is strictly liable for the actions of a supervisor which result in a “tangible employment action.” Such actions include hiring, firing, failing to promote, discipline, demotion or effecting significant changes in working conditions or benefits. Companies can also be held liable for harassment by a supervisor when a tangible employment action does not result if the supervisor has created a hostile work environment and the employer is unable to establish an affirmative defense. An employer establishes such a defense by showing 1) that it exercised reasonable care to prevent and promptly correct any harassing behavior or 2) that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the company.

Where the alleged harasser is simply a coworker, however, the employer is liable only if it was negligent in controlling the employee’s working conditions.  If, for example, an employer failed to respond appropriately to a complaint of harassment by a co-worker, liability might result.

In hearing the Vance case the Court took the opportunity to resolve a conflict  among the circuit courts of appeals as to the definition of “supervisor.”   In a 5-4 decision authored by Justice Alito, the Court adopted the more conservative of the approaches and held that an employer is vicariously liable for an employee’s harassment  “only when the employer has empowered that employee to take tangible employment actions against the victim.”  In doing so, the court rejected the definition promoted by the Equal Employment Opportunity Commission (“EEOC”) which definition had previously been relied on by several circuit courts.

The matter originated with the claim by Maetta Vance, an African-American employee of Ball State University, alleging that she was the victim of discrimination by a fellow food service worker, Saundra Davis.  The parties agreed that Davis did not have the power to hire, fire, demote, promote, transfer or discipline Vance although they largely disagreed about the extent of power Davis otherwise had over Vance.  Under the definition adopted by the Court, Davis was not a supervisor, and Vance’s action against her employer was dismissed.

The practical impact of this decision is quite favorable to employers for two reasons.  First, it adopts a more limited definition of supervisor narrowing the scope of employees for whose conduct a company might be liable even if it is unaware of their specific actions.  Second, it increases the opportunity for lawsuits to be decided early on by summary judgment since there is far less subjectivity in the determination.  Employers in the First Circuit (i.e. New Hampshire and Massachusetts) will see less impact from this decision since this circuit has long been in the camp now joined by the Supreme Court.  Cases like this, however, are always a reminder to employers about the need to train supervisors and managers (and indeed all employees) about anti-discrimination and anti-harassment laws and appropriate workplace behavior.  Adequate training and clear policies are by far the best shield from liability.

The United States District Court decision issued on February 22, 2013, Walker v. N.H. Administrative Office of the Court (“AOC”), in which it ruled on what portions of an employer’s investigation file should be turned over to the plaintiff.  The case was filed by the Administrator of the estate of the former clerk of a circuit court in Littleton alleging that the employee, Michele Walker, experienced harassment, discrimination and retaliation so severe that it caused her to commit suicide.  The AOC,  to which Walker formally complained, hired counsel and an independent investigator to conduct an investigation into the allegations of workplace discrimination and harassment.

The plaintiff filed a motion asking for the complete file of the investigator.  The AOC claimed that documentation from the file including the investigator’s handwritten notes and communications between the investigator and the AOC’s attorney were protected from disclosure due either to attorney client privilege or because they were work product prepared in anticipation of litigation.  The court ruled that all but a small portion of the documents at issue were subject to  discovery.  The privileged documents included:

  • Documents post-dating the investigation prepared in anticipation of litigation including portions of the investigation report and correspondence from the investigator contained her mental impressions and opinions.
  • Email communications from the attorney for the AOC to the investigator giving advice about what might be subject to disclosure in future litigation.

Most of the investigation report including the factual summaries of witness interviews (including that of Walker) had to be produced.  The court ruled that because the plaintiff who was the primary witness was deceased, there was no way the estate could realistically obtain a substantial equivalent to the evidence being sought.  The court also determined that the AOC could not use its investigation as both a sword and a shield. The AOC  claimed in its defense that it conducted a prompt and thorough investigation of Walker’s allegations; it could not now claim that the documentation which memorialized the investigation was not subject to discovery.

Employers who commission investigations and investigators themselves should assume that investigation files and communications between investigator and employer representatives will be discoverable in future litigation.  If  one is going to seek to shield a particular document or category of documents from discovery, counsel should be included in the communication.  The documents should be marked  “Confidential/Attorney-Client Privileged.”   Efforts should be made to segregate privileged communications from the rest of the file and mark them as such.   This will not guaranty that the document will not have to be produced in the future,  but it might help to show that the intent in creating them was to prepare for a possible lawsuit.

“Sticks and stone may break my bones”…but names in the workplace may cost you a fortune! The Proposed Workplace Bullying Law and its Likely Consequences for Massachusetts Employers.

When I was a newly minted attorney a superior once hurled the f-bomb at me because he did not like the answer I was giving to a legal question. He told me I had “a (expletive deleted) annoying way of never answering a question directly.” When I related the incident to another supervisor, he said the fellow had no business speaking to me that way.

As insulting as the incident was, should it provide grounds for a lawsuit? It very well may, if a certain bill – “[a]n Act addressing workplace bullying, mobbing, and harassment” – S. 916 -becomes law during the next legislative session on Beacon Hill.

Senate Bill 916 provides simply that “[n]o employee shall be subjected to an abusive work environment.” An “abusive work environment” is defined as “an employment condition where any employee, acting with malice, subjects another employee to abusive conduct so severe that it causes tangible harm to the target of the abusive conduct[.]” The term “tangible harm” is defined broadly as “psychological harm or physical harm.”

The term “abusive conduct” is defined to include: “repeated infliction of verbal abuse such as the use of derogatory remarks, insults and epithets; verbal or physical conduct of a threatening, intimidating or humiliating nature,” and sabotaging or undermining an employee’s work performance. Attempts to exploit an employee’s known psychological or physical vulnerability also qualify as abusive conduct under the proposed law.

The proposed bill makes the employer “vicariously liable” for an abusive work environment created by its employees. The “bullied” employee is given a “private right of action,” i.e., a right to sue the employer, and may be awarded punitive damages as well as attorneys’ fees. The Act also allows the bullied employee to sue a perpetrator individually.

While the intent of the Act may be laudatory – an aspirational condition referred to as the “Healthy Workplace” – the effect on Massachusetts businesses should S. 916 become law promises to be draconian. This is so because the proscribed activity is comprised of vague and  hazy behavioral concepts which may lend themselves well to the “I know it when I see it” subjective standard of analysis, but which tend to defy objective scrutiny and definition.

In the context of a lawsuit, the Act allows the employer several so-called affirmative defenses. For instance, where “[t]he complaint is based on an adverse employment action reasonably made for poor performance, misconduct, or economic necessity.” The term “adverse employment action” is defined nebulously as “an outcome which negatively impacts an employee.” This definition includes, but is not limited to, “termination, constructive discharge, demotion, unfavorable reassignment, failure to promote, disciplinary action, or reduction in compensation.”

Under the proposed statutory framework, the employer is left having to prove in court that the complained about conduct did not rise to the level of “bullying.” The employer is saddled with the burden of demonstrating that any “adverse employment action” was the result of legitimate business necessity, and not part of the unlawful employment practice complained of by the employee.

It is not too far a stretch to imagine that under the auspices of S. 916 the abusive conduct complained of – such as the sabotaging or undermining of an employee’s work performance – will become, from the plaintiff’s perspective, part and parcel of any adverse employment action such as “demotion, unfavorable reassignment, failure to promote,” and the like. Thus, a depression (a condition fitting the “tangible harm” definition) stemming from the failure to obtain that much-sought-after promotion may give rise to a civil suit. All plaintiff need do is allege that the failure to promote was motivated by malice or active ill will.

And it is unlikely that such a complaint would be amenable to disposition on a motion to dismiss. There are far too many complicated evidentiary issues put into play by the statute’s vague definitions – issues such as motivation, state-of-mind, degree of severity and the like, which are extremely unlikely to be determined one way or the other by a court reviewing initial allegations. A reviewing court is also empowered with the ability to order the offending conduct to stop, to reinstate the bullied employee, or to remove the offending party or bully from the workplace.

All of this means that the employer faced with a “bullying” lawsuit will be compelled to either settle-out quickly, or proceed with a very costly, time-consuming litigation process, the final outcome of which cannot be predicted given the extremely subjective nature of the “abusive work environment” concept intoned by the proposed law.

Ironically, under the present state of federal law, an employer may not be able to sufficiently protect itself via promulgation of an anti-bullying code of conduct.  The National Labor Relations Board ruled recently that employee handbook language which included a courtesy rule requiring employees to be “courteous, polite and friendly” to one another, and refrain from being disrespectful or using profanity, could be considered unlawful.

Massachusetts businesses are already confronted with a bramble bush of rules and regulations relative to the employer/employee relationship. Senate bill 916, while well-intentioned, promises to create an extremely difficult and unacceptably expensive  “walking on eggshells” work environment.