Deconstructing the Dignity at Work Act
Pt. 2 of 3, in which I analyze and evaluate the bill and its chances of legislative passage
Recap
In my last post, I provided ample evidence as to why it’s highly unlikely that the Healthy Workplace Bill (HWB) will pass into law in any of the 50 states anytime soon.
For my efforts, I was thoroughly excoriated by Justine Melo, moderator at SafeHarbor, the online community I developed and moderated for Dr. Gary Namie, co-founder and director of the Workplace Bullying Institute and an avid supporter of the HWB since its inception.
For putting the bill under the microscope as objectively as I could, Justine accused me of surrendering to hatred. I’m not kidding. Please check out the comments for yourself.
It reminds me of a truism: whenever someone is attacked for suggesting that a sacred cow may not be all it’s cracked up to be, it’s evidence that someone belongs to a cult of personality.
Today, I’m turning my attention to another legislative effort to address workplace abuse: the Dignity at Work Act. But it’s clear that I must do more to explain my motives here and do a little housekeeping before I begin.
Motives
As with everything I do here, my intention is to provide the best analysis, evaluation, and commentary I can as it relates to workplace abuse.
As a frequent-flyer-survivor of psychological and emotional abuse in the workplace, I too desire to see a solid piece of legislation pass into law in each of our United States and beyond.
Unless we advocates take a close look in the mirror at ourselves and then those around us, I don’t know how we’ll ever achieve any real reform.
If that upsets some people, well, then I invite those people to put their big-boy and big-girl pants on.
We’re only talking about the psychological safety and emotional well-being of every employee here.
A Little Housekeeping
There are plenty of sites out there devoted to viewing the problem of workplace abuse only ever through a political lens.
But workplace abuse is not a political problem first and foremost, as many advocates today believe. Allow me to illustrate:
I work to eat, as well as pay for other living expenses and some of my material wants.
Along comes someone with an undiagnosed and untreated mental illness, of which Narcissistic Personality Disorder (NPD) appears to be the most common to result in workplace abuse.*
The emotionally disordered person throws such a wrench into things for me at work that, for the sake of my emotional health, I’ll need to transfer (if I’m allowed) or quit, if I’m not fired first, that is.
For these reasons, in the mind of this armchair social anthropologist, the majority of workplace abuse should be classified under the label of Natural Law.
And until Science discovers a way for us to breed NPD and psychopathy out of the human race, and ensure that not another soul experiences the neglect during the first three years of life that is common among many (but not all) emotional predators, the chances of narcissistic abuse persisting in the workplace is as likely as the sun rising in the East each and every morning.
The Dignity at Work Act
The next effort to evaluate is the Dignity at Work Act (DAWA), written by Dr. Jerry Carbo** and first sponsored by state lawmakers in 2020. Carbo is a law professor at Shippensburg University and president of the National Workplace Bullying Coalition.
In 2021, their bill was able to do something that Namie and Yamada and company weren’t able to do with the Healthy Workplace Bill in twenty years: DAWA made it through the Rhode Island Senate.
But what I share next will curl the toenails of those ideologues who insist that Republicans are to blame for our lack of progress:
That June, DAWA died in committee in the Rhode Island House, despite the fact that Democrats held a supermajority.
Why? It may be that the bill, like many others before it, needs several looks by legislators before it gets passed in Rhode Island and beyond.
Time will tell.
A Thorough Diagnostic
As I did with the Healthy Workplace Bill in Wednesday’s post, I piped the Dignity at Work Act through ChatGPT, an imperfect by highly sophisticated Artificial Intelligence tool, to see how it fared.
Jensen:
Workplace abuse advocates are striving to pass a law in the individual 50 state legislatures. One effort is the Dignity at Work Act, introduced as Bill S.1185 to the Massachusetts Legislature.
The language from the Dignity at Work Act is as follows:
(For greater readability, I’ve excised the language of the bill itself. If you want to read it for yourself, you’ll find it here.)
As you understand employment law, what are the weaknesses of this bill regarding its efficacy to address the prevalence of psychological and emotional abuse in the workplace?
ChatGPT:
While the Dignity at Work Act (DAWA) outlined in the provided text aims to address workplace bullying and harassment comprehensively, there are some potential weaknesses and challenges that may affect its efficacy. Here are some considerations:
Broad Definition of Bullying and Harassment: The definition of workplace bullying in the Act is comprehensive, encompassing a wide range of behaviors. However, the broadness might lead to challenges in enforcement and interpretation. It could be challenging to distinguish between genuinely harmful behaviors and more subjective or isolated incidents.
Subjectivity in Determining Harm: The Act relies on the concept of harm to dignity and other human rights, which can be subjective and may vary among individuals. The determination of harm may be challenging to assess objectively, potentially leading to inconsistencies in enforcing the law.
Challenges in Proving Intent: The Act specifies that the offender's intent is not a required element to support a claim of workplace bullying or harassment. However, proving intent is often complex, and without clear criteria, it may be challenging to establish whether certain behaviors were intended to be abusive.
Burden on Employers: While the Act places responsibilities on employers to prevent, detect, and remedy workplace bullying, the burden on employers may be significant. Small businesses, in particular, might face challenges in implementing and enforcing policies effectively, potentially leading to compliance issues.
Ambiguity in the Affirmative Defense: The affirmative defense for employers relies on demonstrating that they took all necessary steps to prevent, detect, and remedy prohibited behaviors. The specific criteria for meeting this defense are outlined, but their interpretation may be subjective. This could result in legal disputes over whether an employer took "all necessary steps."
Statute of Limitations: The three-year statute of limitations for filing a complaint may limit the ability of individuals to bring forward valid claims, especially considering that the psychological effects of workplace bullying may not manifest immediately. The tolling of the statute of limitations when filing a complaint with the Fair Work Commission might be insufficient in some cases.
Potential for Overreach: The Act prohibits certain employment practices, such as requiring complainants to enter into non-disclosure agreements. While transparency is essential, a complete prohibition may hinder legitimate settlement agreements and negotiations between parties.
Overlapping with Existing Laws: The Act acknowledges that it does not limit employee rights under other laws. However, there is potential for confusion or duplication of efforts, particularly if state and federal laws already provide avenues for addressing workplace harassment.
Resource Allocation for Enforcement: Establishing the Fair Work Commission (FWC) is a positive step, but the effectiveness of the Act may depend on the resources allocated to the FWC for investigations, adjudication, and enforcement. A lack of resources could impact the Commission's ability to handle a potentially high volume of complaints.
Complexity in the Affirmative Defense for Management Actions: The affirmative defense related to management actions involves a multi-step process with specific criteria. This complexity may lead to legal disputes over whether an employer's actions were justified, potentially creating additional challenges for both employers and employees.
In summary, while the Dignity at Work Act addresses workplace bullying and harassment comprehensively, addressing the potential weaknesses and refining certain aspects of the legislation could enhance its effectiveness in promoting a healthier and more respectful work environment.
Jensen:
This bill, the Dignity to Work Act, was written by a person with Progressive political beliefs, and is promoted by individuals who mostly believe as he does.
Can you please point out the political biases in the draft that will make it very difficult for conservative-minded state legislators to support?
ChatGPT:
The Dignity at Work Act (DAWA) exhibits certain language and principles that may present challenges for conservative-minded state legislators to support. Here are potential political biases that could be perceived as more aligned with Progressive beliefs:
Expansive Definitions and Subjectivity: The Act's broad definitions of workplace bullying, harassment, and harm to dignity may be viewed as subjective and open to interpretation. Conservatives might prefer clearer, objective criteria to avoid potential misuse or overreach.
Emphasis on Collective Rights: The Act places a strong emphasis on the rights of targets, witnesses, and bystanders, which aligns with a collective approach to workplace issues. Conservatives may prefer an emphasis on individual rights and responsibilities rather than collective rights.
Employer Responsibilities and Regulation: The Act places significant responsibilities on employers to prevent, detect, and remedy workplace bullying. Conservative legislators may lean towards minimizing government intervention in employer-employee relationships, favoring more limited regulation.
Affirmative Defense Complexity: The affirmative defense for employers involves a detailed and potentially complex process, including specific criteria for prevention and remedy efforts. Conservatives might argue for a more straightforward approach to avoid burdensome regulation on businesses.
Statute of Limitations: The three-year statute of limitations might be seen as too generous by conservatives who prioritize individual responsibility and may advocate for shorter timeframes to file complaints.
Potential Opposition to Restrictions on Employment Practices: Conservatives may be cautious about outright prohibitions on certain employment practices, such as requiring complainants to enter into non-disclosure agreements. They may argue for preserving employers' ability to negotiate terms with employees.
Creation of Fair Work Commission: The establishment of the Fair Work Commission may be viewed as creating another regulatory body, potentially conflicting with conservative principles of limited government intervention and reducing bureaucracy.
Punitive Damages and Injunctive Relief: The Act allows for punitive damages and injunctive relief, which might be perceived by conservatives as excessive and may lead to concerns about potential legal overreach or abuse.
Non-waivable Rights: The provision stating that rights are non-waivable might be seen as limiting individual freedom to negotiate terms of employment, especially through collective bargaining agreements. Conservatives may argue for preserving flexibility in employment contracts.
Overlap with Existing Laws: The acknowledgment that the Act does not limit employee rights under other laws might be viewed as redundant or unnecessary by conservatives, who may prefer a more streamlined approach to workplace legislation.
It's important to note that political biases are subjective, and individuals may interpret the language and principles of the Act differently. Conservative legislators may have varied perspectives, and some elements of the Act might be more acceptable than others depending on their specific policy priorities and beliefs.
To be completely fair to Carbo and the other authors, I have no idea as to whether or not any discussions were held with conservative-minded people when drafting these bills.
But the list of biases identified by ChatGPT suggests that this may be one piece of the process that appears to have been overlooked could be easily be shored up with a few phone calls and another revision.
Next week, I’ll circle back to evaluate the third piece of legislation worthy of our attention: the Workplace Psychological Safety Act.
Until then, take care,
Chris
*I realize that some percentage of workplace abuse is a result of a Dog-Eat-Dog mentality. But these studies suggest that most abuse happens at the hands of individuals suffering from Narcissistic Personality Disorder. Thanks goes to Jo Brown at DignityWorks for turning my attention to these:
Dåderman AM, Ragnestål-Impola C. Workplace bullies, not their victims, score high on the Dark Triad and Extraversion, and low on Agreeableness and Honesty-Humility. Heliyon. 2019 Oct 11
Jang, Sunjoo & Lee, Haeyoung. Pathological narcissism, interpersonal cognitive distortions, and workplace bullying among nurses: A cross‐sectional study. Journal of Nursing Management. 2022 June
Saleem, Faisal & Andi, Hari & Jamil, Adnan & Saba, Farhat. Surviving the Narcissist’s Psychological Game: Disarming the Toxic Workplace Coworkers.. Multicultural Education. 2022 July
Schyns, B., Braun, S., & Wisse, B. Dark personalities in the workplace. 2019
Yatsyna, Olena. (2021). Mobbing Syndrome as a Personality Disorder: The Consequences of Complicated Socialisation in the Symptoms of Occupational Destruction. Scientific Bulletin of Mukachevo State University Series “Pedagogy and Psychology”. 2021
Zverling, Erez. (2016). Betrayal of trust: Intimate partner bullying (IPB). Psychology and Education: An Interdisciplinary Journal, Vol 53 (1-2), 2016 Jan
**To be completely transparent, I should inform you that Jerry and I have talked several times since late 2021. While he and I disagree here and there, I know Jerry to be a really, really good guy.
If you don’t believe me, read his statement for yourself.