phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The

2. More Litigation

It is inevitable that the adoption of this new cause of action would lead to a significant initial surge in employment litigation. In the abstract, unnecessary or excessive litigation is undesirable. If, an the other hand, legislatures or judges create rights because public policy deems them important and the marketplace cannot adequately address the underlying ills, then the courts or administrative agencies exist in part to vindicate those rights. It follows that if the threat of liability is the best way to discourage certain behavior, general concerns about an overly litigious society should not be allowed to defeat the creation of new rights. Furthermore, as employers begin to institute preventive measures, the courts will clarify the meaning of the doctrine by exercising their power to dismiss nonmeritorious cases. This initial surge of litigation eventually will level off, and employers will be able to seek guidance for their internal policies and practices from the developing case law. Finally, the affirmative defense for cases not culminating in a tangible employment action provides employers with a powerful economic incentive to engage in preventive measures that reduce the likelihood of litigation.

3. More "Errors" for Plaintiffs

Another concern raised by Epstein is that the further erosion of at-will employment will lead to more erroneous verdicts for employees, thanks to overly sympathetic triers of fact.361 This is certainly possible with bullying, especially in cases alleging abusive supervision, Jurors might overlook the requirements of the law simply because they find the plaintiffs boss to be unlikeable. However, under the proposed statute plaintiffs will not have an easy time proving their claims. Where a defendant's behavior is clearly loud, abusive, ongoing, and visible for alL to see, triers of fact will have little difficulty finding that a hostile work environment existed. However, as Keashly points out, the subtle or hidden nature of certain abusive behaviors "not only makes them difficult to describe specifically but also undermines the target's own abilities to discern exactly what has been going on. It could be argued that the behaviors became unidentifiable and, likely not punishable."362 As one of the respondents to Keashly's study remarked, "unless you live it, you don't understand it, you just don't understand it."363

4. "Torfiying" the Workplace

To the extent that the proposed protection can be seen as a statutory codification of what is, in essence, a tort theory,364 then it could he criticized for advancing what Professor Dennis Duffy calls the "tortification" of labor and employment law.365 In a 1994 article, Duffy takes aim at this "tortification," which he notes has been led by an influx of workplace IIED cases.366 However, whereas Duffy has offered some useful criticisms of workplace IIED claims, the proposed cause of action effectively addresses them.

In addition, this article differs with Duffy on several of his claims about the role of individual employment rights in the modern workplace. First, Duffy opines that because a decision in in an intentional infliction of emotional distress case is so dependent "upon the court's own response to what it considers to be particularly egregious facts," an employer will have "rio incentive to alter its personnel practices and procedures or to reconsider its management decisions" due to a lack of clear guidance as to what behavior is actionable.367 This point is partially correct as applied to IIED claims. It is true that the threat of an IIED claim gives employers scant incentive to alter their policies, but not because of the subjectivity of judicial decisionmaking. Rather, the real reason that employers have little to fear in terms of IIED liability is that so few are successful. A smart employer need only respond to the most egregious behavior, especially behavior related to some type of statutory discrimination or harassment. Furthermore, in jurisdictions where courts have held that workers' compensation statutes preempt employee IIED claims, egregious behavior that otherwise would have invited a lawsuit can now be treated simply as a business cost.