BILL REQ. #:  S-3908.1 

Read first time 01/21/08.   Referred to Committee on Labor, Commerce, Research & Development.

     AN ACT Relating to providing legal redress for targets of workplace bullying, abuse, and harassment; adding a new chapter to Title 49 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds and declares that:
     (a) The social and economic well-being of the state is dependent upon healthy and productive employees;
     (b) Surveys and studies have documented that between sixteen percent and twenty-one percent of employees directly experience health-endangering workplace bullying, abuse, and harassment, and that this behavior is four times more prevalent than sexual harassment alone;
     (c) Surveys and studies have documented that abusive work environments can have serious effects on targeted employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, posttraumatic stress disorder, reduced immunity to infection, stress-related gastrointestinal disorders, hypertension, and pathophysiologic changes that increase the risk of cardiovascular diseases;
     (d) Surveys and studies have documented that abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and absenteeism rates, and significant increases in medical and workers' compensation claims;
     (e) Unless mistreated employees have been subjected to abusive treatment at work for unlawful discriminatory reasons, they are unlikely to have legal recourse to redress such treatment;
     (f) Legal protection from abusive work environments should not be limited to behavior grounded in protected class status such as is provided under employment discrimination statutes; and
     (g) Existing workers' compensation plans and common law tort actions are inadequate to discourage this behavior or provide adequate redress to employees who have been harmed by abusive work environments.
     (2) For these reasons, the legislature intends:
     (a) To provide legal redress for employees who have been harmed, psychologically, physically, or economically, by being deliberately subjected to abusive work environments; and
     (b) To provide legal incentives for employers to prevent and respond to mistreatment of employees at work.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Abusive conduct" is conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. In considering whether abusive conduct is present, a trier of fact should weigh the severity, nature, and frequency of the conduct. Abusive conduct may include, but is not limited to, repeated infliction of verbal abuse such as the use of derogatory remarks, insults, and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating; or the gratuitous sabotage or undermining of a person's work performance. A single act normally will not constitute abusive conduct, unless especially severe and egregious.
     (2) "Abusive work environment" is a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee.
     (3) "Conduct" is all forms of behavior, including acts and omissions of acts.
     (4) "Constructive discharge" is abusive conduct (a) which causes the employee to resign, (b) where, prior to resigning, the employee brings to the employer's attention the existence of the abusive conduct, and (c) the employer fails to take reasonable steps to eliminate the abusive conduct.
     (5) "Employee" means the same as in RCW 51.08.185.
     (6) "Employer" means the same as in RCW 51.08.070.
     (7) "Malice" is the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification. Malice may be inferred from the presence of factors such as outward expressions of hostility, harmful conduct inconsistent with an employer's legitimate business interests, a continuation of harmful, illegitimate conduct after the complainant requests that it cease or demonstrates outward signs of emotional or physical distress in the face of the conduct, or attempts to exploit the complainant's known psychological or physical vulnerability.
     (8) "Negative employment decision" is a termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, or disciplinary action.
     (9) "Physical harm" is the material impairment of a person's physical health or bodily integrity, as documented by a competent physician or supported by competent expert evidence at trial.
     (10) "Psychological harm" is the material impairment of a person's mental health, as documented by a competent psychologist, psychiatrist, or psychotherapist, or supported by competent expert evidence at trial.

NEW SECTION.  Sec. 3   (1) It is an unlawful employment practice under this chapter:
     (a) To subject an employee to an abusive work environment; or
     (b) To retaliate in any manner against an employee because he or she has opposed any unlawful employment practice under this chapter, or because he or she has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this chapter including, but not limited to, internal proceedings, arbitration and mediation proceedings, and legal actions.
     (2) It is an affirmative defense to an action for an abusive work environment that:
     (a) The employer exercised reasonable care to prevent and promptly correct the abusive conduct and the aggrieved employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer. This defense is not available when the abusive conduct culminates in a negative employment decision.
     (b) The complaint is grounded primarily upon a negative employment decision made consistent with an employer's legitimate business interests, such as a termination or demotion based on an employee's poor performance, or the complaint is grounded primarily upon an employer's reasonable investigation of potentially illegal or unethical activity.
     (3) An employer is vicariously liable for an unlawful employment practice in violation of this chapter committed by its employee.

NEW SECTION.  Sec. 4   (1) Where a defendant has been found to have committed an unlawful employment practice under this chapter, the court may enjoin the defendant from engaging in the unlawful employment practice and may order any other relief that is deemed appropriate including, but not limited to, reinstatement, removal of the offending party from the complainant's work environment, back pay, front pay, medical expenses, compensation for emotional distress, punitive damages, and attorneys' fees.
     (2) Where an employer has been found to have committed an unlawful employment practice under this chapter that did not result in a negative employment decision, the employer's liability for damages for emotional distress may not exceed twenty-five thousand dollars and the employer may not be liable for punitive damages. This subsection does not apply to individually named coemployee defendants.

NEW SECTION.  Sec. 5   (1) This chapter may be enforced solely by a private right of action.
     (2) An action commenced under this chapter may be commenced no later than one year after the last act that comprises the alleged unlawful employment practice.

NEW SECTION.  Sec. 6   (1) Nothing in this chapter may be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any other law of this state.
     (2) The remedies in this chapter are in addition to remedies under workers' compensation laws. However, a person who believes that he or she has been subjected to an unlawful employment practice under this chapter may elect to accept workers' compensation benefits in connection with the underlying behavior in lieu of bringing an action under this chapter. A person who elects to accept workers' compensation may not bring an action under this chapter for the same underlying behavior.

NEW SECTION.  Sec. 7   Sections 1 through 6 of this act constitute a new chapter in Title 49 RCW.