Massachusetts could become the first state in the country to enact a broad workplace anti-abuse law intended to hold employers liable for perpetuating, condoning, or ignoring psychological abuse at work. On October 10, 2023, Massachusetts had the highest number of advocates in the nation ever testify in front of the legislature in favor of anti-abuse legislation in the workplace. Workers, employment attorneys, human resources professionals and others urged the Massachustts Joint Committee on Labor and Workforce Development to pass the Workplace Psychological Safety Act. The committee has until February to move the proposed bill forward.
The Workplace Psychological Safety Act would significantly expand employment law protections. Massachusetts law prohibits discrimination and harassment in the workplace if that discrimination or harassment is based on a protected class: race, color, religious creed, sex, gender identity, sexual orientation, national origin, age, pregnancy, genetic information, ancestry, veteran status, or disability. Unless an employee is a member of one of these protected classes, can prove that their mistreatment at work is based on their membership in that protected class they do not have legal protection against harassment, bullying, or psychological abuse at work. The tort law legal claim of intentional infliction of emotional distress (IIED), while applicable to any person, requires a plaintiff to prove (1) that the defendant either intended to cause the emotional distress or knew or should have known that their conduct would likely cause emotional distress, (2) that the defendant’s actions were so outrages they are “beyond all possible bounds of decency,” and (3) that the resulting distress was severe. Needless to say, claims for IIED can be very difficult to prove. In addition, a claim for IIED can only be brought against the person who inflicted the distress, while employment discrimination and harassment claims can be brought against the employer and supervisors who allowed the environment in which the harassment occurred.
The proposed Act would establish a cause of action for employees who suffer from an abusive work environment created by psychological harm or abuse: employees will be able to sue their employer or individual coworkers for subjecting them to psychological harm and recover economic, compensatory, and punitive damages, and attorneys’ fees. Employees suing their employer under the proposed Act would need to file their claim in court within one year after the last act that constitutes the alleged psychological harm or abuse. While there is no requirement that individuals file a charge at the Massachusetts Commission Against Discrimination (MCAD) under the proposed Act, to the extent that their claim also stems from discrimination based on protected status, they would need to file at the MCAD within 300 days of the last discriminatory act.
Under the proposed Act, an abusive work environment is defined as “an employment condition when an employer subjects an employee to abusive conduct that causes physical harm, psychological harm or both.” Abusive conduct is defined as “intentional acts, omissions, or both, that a reasonable person would find offensive based on the severity, nature, and frequency of the conduct, including but not limited to: repeated verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance.” Psychological harm is defined as “the impairment of a person’s mental health, as established by competent evidence,” which is not defined in the statute.
One critical part of the purpose of the Act is to hold employers who channel discrimination through bullying, but the discrimination piece may be too difficult to prove, accountable for their actions. The 2016 EEOC Select Task Force for the Study of Workplace Harassment Report shows that people of color, women, members of the LGBTQ+ community, and people with disabilities are mistreated at work more frequently than their counterparts. During the hearing, there was testimony from multiple researchers and experts who emphasized the importance of the proposed bill to protect employees from the significant neurological scarring to the brain that results from psychological abuse. Dr. Jennifer Fraser, author of The Bullied Brain, testified how there are laws protecting people from physical abuse and extensive research shows that “psychological abuse is as damaging as physical abuse,” so there should be laws to protect against it in the same way. There was also testimony from multiple women of color about the psychological abuse they have endured at work and how current laws do not offer adequate protection for them: sending the message that it is acceptable to mistreat people, particularly women of color, in the workplace. The bill is sponsored by Senator Paul Feeney and co-sponsored by twenty-one other state Senators and Representatives.
The proposed Act and large number of supporters demonstrate that workplace bullying and psychological abuse are significant issues for employees that both constituents and advocates care about. It remains to be seen whether the legislature will agree with the advocates and provide employees with these workplace protections.
If you have been discriminated against or deprived of other workplace protections, contact our employment attorneys at (617) 742-6020.