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phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The
Georgetown Law Journal, Mar 2000 by Yamada, David C
E. DESIGNING THE STATUTORY STRUCTURE
1. Forum
The proposed statute could be enacted at either the federal or state level. A federal statute obviously would provide the most comprehensive and uniform protection. In addition, its passage and implementation could help to raise consciousness about the detrimental effects of workplace bullying.
2. Relief
In terms of relief for successful plaintiffs, federal employment discrimination statutes provide useful guidance. In general, these statutes allow for back pay, front pay, reinstatement, punitive damages, and injunctive relief.342 The proposed statute should incorporate these standards in order to achieve the policy goals of compensation and punishment; as well as to provide an economic incentive for employers to implement effective preventive measures and to respond fairly and promptly to employees' complaints.
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3. Private Cause of Action
It is common for other protective employment statutes to be enforced and adjudicated by an administrative agency, such as the U.S. Department of Labor or the Equal Employment Opportunity Commission. One could argue that this type of arrangement would be desirable for the proposed statute, as a single agency could develop expertise interpreting the statute and promulgating regulations. Under such structures, complainants usually have the option of being represented by either private counsel or the applicable enforcement agency: For the complainant of modest or little means, the latter option provides access to legal representation.
However, in order to ward off frivolous claims, it may be preferable to procedurally limit this proposed cause of action to a private lawsuit. The Equal Employment Opportunity Commission and its state equivalents are generally obligated to consider every claim. Potential complainants who are not represented by private counsel can have their cases investigated and, where appropriate, prosecuted by commission attorneys. This concededly invites weak claims by individuals who have little economic disincentive if they are unsuccessful. Because the proposed cause of action does not require that a plaintiff be a member of a certain protected class, the population of potential litigants includes virtually anyone who is an employee. By limiting the proposed cause of action to a private lawsuit, the plaintiffs' bar would serve a valuable gatekeeping function. A plaintiffs' attorney presumably would be reluctant to bring a weak ease, especially if she or he is representing the client on a contingency fee basis.
F. OTHER CONSIDERATIONS
1. The Relationship of the Proposed Protection to Status-Based Harassment Laws
Although the proposed protection draws heavily from Title VII hostile work environment doctrine, it is meant to stand on its own.343 However, the enactment of a status-blind hostile work environment law could specially benefit those who are targets of status-based harassment as well. Recall that the discussion of Title VII hostile work environment doctrine above explained the way in which federal courts disaggregate factual allegations of sexual conduct from those of nonsexual conduct.344 Sexual conduct is considered under hostile work environment analysis, but nonsexual conduct is considered under disparate treatment theory. Where an employee is the target of both sexual and nonsexual conduct, the effect of disaggregation is to dilute the gravity of the offending behavior, thereby ensuring that it will never be considered in its totality. The theory proposed here would have the opposite result. A plaintiff would be able to include all of the bullying behavior in constructing a prima facie case. Consequently, a trier of fact would be able to assess the allegedly offending conduct in its entirety.
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