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NOTES:

THE HEALTHY WORKPLACE BILL: A

PROPOSAL TO ADDRESS
WORKPLACE BULLYING IN
MASSACHUSETTS

Joanna Canty*
Abstract: Workplace bullying, also known as gender-neutral harassment or
non-status-based harassment, is a rising epidemic in the United States. Recent
statistics indicate that bullying is four times more prevalent in the workplace
than is discriminatory harassment prohibited under civil rights laws.
Unfortunately, victims of workplace bullying often have little legal recourse.. In
response to the increased prevalence of workplace bullying, Suffolk University
Law School Professor David C. Yamada crafted the model Healthy Workplace
Bill, which makes subjecting an employee to an abusive work environment an
unlawful employment practice. Legislation based on the Bill has been proposed
in thirteen states since 2003, but thus far has not been passed in any. In 2005,
Massachusetts State Representative Ellen Story of Amherst proposed legislation
that would commission a study of workplace psychological abuse and mandate
that the Division of Occupational Safety develop a program requiring
businesses with fifty or more employees to institute a policy to prevent such
behavior. The Massachusetts bill failed to pass before the end of the legislative
session. It was reintroduced in 2007 but again failed to pass after languishing in
committee. This Note argues that the legislation proposed in Massachusetts to
address workplace bullying, though a step in the right direction, is inadequate to
protect Massachusetts employees from workplace bullying and, accordingly,
advocates for Massachusetts to adopt a stronger modified version of the Healthy
Workplace Bill drafted by Professor Yamada.

491
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492 NEW ENGLAND LAW REVIEW [Vol. 43:491

INTRODUCTION ..........................................................................................492
I. The Growing Problem of Bullying in the American
Workplace................................................................................497
A. The Prevalence of Workplace Bullying.............................498
B. The Effects of Workplace Bullying on Employees ...........499
C. The Effects of Workplace Bullying on Employers ............500
D. The Effects of Workplace Bullying on the Bottom Line...500
II. Current Massachusetts Laws Failure to Sufficiently
Address Workplace Bullying...................................................501
A. The Massachusetts Anti-Discrimination Statute................502
B. The Massachusetts Workers Compensation Act ..............503
C. Intentional Infliction of Emotional Distress ......................505
III. The Healthy Workplace Bill....................................................507
A. Key Provisions of the Bill..................................................508
B. Critical Response to the Bill ..............................................510
IV. International Approaches to Workplace Bullying ...................512
V. The Massachusetts Legislatures Response to
Workplace Bullying.................................................................515
A. The Massachusetts Bill ......................................................515
B. Proposal to Improve Massachusettss Legislative
Response to Workplace Bullying ......................................516
1. Create a Private Cause of Action ................................516
2. Provide Administrative Agency Adjudication of
Claims .........................................................................517
CONCLUSION ..............................................................................................519

INTRODUCTION
Elvira DiLuca began working at Communications and Power
Industries 1 in 1978, and for many years she had a close friendship with
coworker Anna Lohnes. 2 In 1995, their friendship soured, and Lohnes
became belligerent, hostile, and confrontational toward DiLuca. 3 By late
1996 this behavior escalated into verbal harassment, which DiLuca

* Candidate for Juris Doctor, New England School of Law (2009). B.A., English, Boston
College (1997). The author may be contacted at joanna.canty@gmail.com. The author
would like to thank Timothy Braughler and Iva Ziza for their patience and editing
assistance.
1. Communications and Power Industries is a company that manufactures electronic
equipment and components. DiLuca v. Commcns and Power Indus., Inc., No. 00-02000,
2003 WL 21781564, at *1 (Mass. Super. Ct. July 25, 2003). Plaintiff Elvira DiLuca worked
as a technician and constructed cathode assemblies used in radar systems. Id.
2. Id.
3. Id.
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reported to her supervisor he told them to try to get along. 4 In 1997,

other coworkers, including DiLucas former sister-in-law, began to join in
the harassment of DiLuca. 5
As the hostility at work escalated, DiLucas health deteriorated. 6 She
became anxious and depressed, and developed pains in her hands, arms,
and legs. 7 She often cried at work, had difficulty sleeping, and found the
stress at work to be overwhelming. 8 She ultimately was diagnosed with
fibromyalgia, a syndrome that is characterized by chronic pain throughout
the body and is exacerbated by stress. 9
After DiLuca complained about specific instances of harassment at
work, her employer made some changes, including moving Lohness
workstation to a different area, transferring DiLucas ex-sister-in-law to a
different department, and assigning DiLuca to a new supervisor. 10 Still, the
harassment from Lohnes and other coworkers persisted and eventually
culminated in a serious altercation between DiLuca and Lohnes on
February 2, 2000, during which the women raised their voices and swore at
each other. 11 Following an investigation, DiLucas employer determined
that both women were at fault for the argument and concluded that DiLuca
was not being harassed. 12 Within days after the altercation, DiLuca took a
medical leave of absence. 13 On June 30, 2000, she informed her employer
that though she was physically able to return to work, she would not do so
because of the harassment and her employers failure to reasonably
accommodate her. 14

4. Id. at *2.
5. Id.
6. Id.
7. DiLuca, 2003 WL 21781564, at *2.
8. Id.
9. Id. at *3.
10. Id. at *2-3.
11. Id. at *3-4.
12. Id. at *4.
13. DiLuca, 2003 WL 21781564, at *4. The original basis for the medical leave is
unclear from the record, though presumably the leave was due to her fibromyalgia. On April
20, 2000, her psychiatrist declared her totally disabled due to depression. Id.
14. Id. at *4.
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494 NEW ENGLAND LAW REVIEW [Vol. 43:491

For Mary Coyne, the harassment began shortly after Mark Sheehan
was appointed Deputy Superintendent of Night Operations 15 at the Boston
Water and Sewer Commission in February 1998. 16 Coynes position as a
yard clerk required her to answer calls from the public and from work
crews in the field. 17 Sheehan criticized her work by shouting at her from
his office, repeatedly ordering her to speak up and sit closer to the
microphone, and yelling at her for failing to answer radio calls from work
crews while she was assisting customers on the phone. 18 Sheehan
frequently stood at her shoulder as she performed her duties, staring at her
for ten minutes at a time. 19
As a result of this constant scrutiny, Coyne began to suffer panic
attacks and have difficulty sleeping. 20 In March 1998, Coyne began to see a
psychiatrist and was placed on anti-anxiety and anti-depressant
medication. 21 Coyne reported Sheehans conduct to her employer but her
employer determined there was no evidence to support her allegations that
Sheehan was harassing her. 22 By June 1998, Coyne was forced to take a
medical leave of absence for anxiety, isolation, fearfulness, nausea,
gastrointestinal problems, insomnia and obsessive thoughts that rendered
her incapable of performing the functions of her job. 23
DiLuca and Coyne were victims of workplace bullying, a rising
epidemic in American employment relations. 24 Workplace bullying has
been defined as the repeated, malicious verbal mistreatment of [one
employee] by a harassing bully[,] . . . . typically a mixture of cruel acts of

15. This was a managerial position, and Sheehan was responsible for supervising all
night shift employees in the Boston Water and Sewer Commissions Operations Division,
including Complainant Mary Coyne. See Coyne, 27 MDLR 330, 331 (Mass. Commn
Against Discrimination 2005).
16. Id. at 331. Although the Hearing Officer ultimately decided Coyne lacked
credibility, for the purposes of this Note Coynes testimony is viewed in the light most
favorable to her. At least one of Coynes co-workers corroborated that Sheehan was very
abrasive and unskilled at handling people, and that Coyne frequently seemed upset at the
end of her shift after Sheehan became her manager. Id. at 333.
17. Id. at 331.
18. Id. at 332.
19. Id.
20. Id.
21. Coyne, 27 MDLR at 333.
22. Id.
23. Id.
24. See WORKPLACE BULLYING INSTITUTE & ZOGBY INTERNATIONAL, U.S. WORKPLACE
BULLYING SURVEY (2007), available at http://bullyinginstitute.org/zogby2007/WBIsurvey
2007.pdf [hereinafter ZOGBY]; Workplace Bullying Institute, http://bullyinginstitute.org/
education/bbstudies/def.html (last visited Feb. 3, 2009).
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2009] THE HEALTHY WORKPLACE BILL IN MASSACHUSETTS 495

deliberate humiliation or interference . . . preventing the [targeted

employee] from succeeding at work. 25 Bullying encompasses conduct that
is threatening, humiliating or intimidating, and sabotage. 26 According to
a 2007 study conducted by Zogby International, 27 thirty-seven percent of
American workers have been bullied at work. 28 This statistic translates to
54 million people, 29 and indicates that bullying is four times more
prevalent in the workplace than discriminatory harassment prohibited under
civil rights laws. 30
Unfortunately, workplace bullying is currently not illegal in
Massachusetts, 31 and victims of workplace bullying often have little legal
recourse. 32 Federal and state anti-discrimination laws, including those in
Massachusetts, only address harassment in the workplace that is based
upon the victims protected status (e.g., race, age, gender). 33 Both DiLuca
and Coyne brought actions under Massachusettss anti-discrimination
statute, but both lost because, at least in part, the conduct they complained

25. GARY NAMIE & RUTH NAMIE, THE BULLY AT WORK: WHAT YOU CAN DO TO STOP
THE HURT AND RECLAIM YOUR DIGNITY ON THE JOB 3 (2000).
26. Workplace Bullying Institute, http://bullyinginstitute.org/education/bbstudies/def
.html (last visited Feb. 3, 2009).
27. Zogby International is a public opinion research firm. See Zogby International,
About Zogby, http://www.zogby.com/about/index.cfm (last visited Feb. 3, 2009). Its
President and C.E.O., John Zogby:
[I]s a leader in the field of public opinion research, having pioneered a
new and proven reliable method of weighting survey results to
accurately reflect the universe in which a poll is conducted . . . . Since
1996, Zogby has polled for Reuters News Agency . . . and in 2000
polled for NBC News . . . . His clients also include MSNBC, the Wall
Street Journal, the New York Post, Fox News, Knight-Ridder
Newspapers, Gannett News Service . . . and nearly every daily
newspaper in New York State, as well as television stations throughout
the U.S.
Zogby International, Zogby on Polling the Primaries, http://www.zogby.com/news/
ReadNews.cfm?ID=1464 (last visited Feb. 9, 2009).
28. ZOGBY, supra note 24, at 4.
29. Id.
30. Id. at 9; Workplace Bullying Institute, http://bullyinginstitute.org/education/
bbstudies/def.html (last visited Jan. 21, 2009).
31. See Workplace Bullying Institute, Workplace Bulling Legislative Campaign,
http://workplacebullyinglaw.org/states/currentbills.html (last visited Feb. 9, 2009).
Massachusetts is not alone: To date, no states have passed legislation prohibiting workplace
bullying. See id.
32. See David C. Yamada, Crafting a Legislative Response to Workplace Bullying, 8
EMP. RTS. & EMP. POLY J. 475, 484 (2004).
33. See MASS. GEN. LAWS ch. 151B, 3A (2006); 804 MASS. CODE REGS. 3.01 (2008).
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496 NEW ENGLAND LAW REVIEW [Vol. 43:491

of was not related to any protected-class status. 34 The Commonwealths

workers compensation statute generally bars tort actions against an
employer who fails to address workplace bullying. 35 Additionally, claims
against the perpetrator alleging intentional infliction of emotional distress
most often fail, because the complained-of conduct is not extreme and
outrageous enough to meet that torts standard for liability. 36
In response to the increased prevalence of workplace bullying,
Suffolk University Law School Professor David C. Yamada crafted the
Healthy Workplace Bill (the Bill), model legislation which aims to
address the dual policy goals of preventing workplace bullying and
compensating its victims. 37 The Bill makes subjecting an employee to an
abusive work environment an unlawful employment practice, and defines
such an environment as one in which the defendant, acting with malice,
subjects the complainant to abusive conduct so severe that it causes
tangible harm to the complainant. 38
Legislation based on the Bill has been proposed in thirteen states
since 2003, but thus far has not been passed in any. 39 In 2005,
Massachusetts State Representative Ellen Story proposed legislation (the
Massachusetts Bill) that would commission a study of workplace
psychological abuse and mandate that the Division of Occupational
Safety 40 develop a program requiring businesses with fifty or more
employees to institute a policy to prevent such behavior. 41 The
Massachusetts Bill was referred to the House Rules Committeea
legislative committee that recommend[s] special orders for the scheduling

34. DiLuca v. Commcns & Power Indus., Inc., No. 00-02000, 2003 WL 21781564, at
*6 (Mass. Super. Ct. July 25, 2003); Coyne, 27 MDLR 330, 334 (Mass. Commn Against
Discrimination 2005).
35. See, e.g., Green v. Wyman-Gordon Co., 664 N.E.2d 808, 813 (Mass. 1996).
36. See Yamada, supra note 32, at 485. See infra Part II.C, for a discussion of extreme
and outrageous.
37. See Yamada, supra note 32, at 498.
38. Id. at 518. The Bills definition of abusive conduct and other major provisions of
the Bill are discussed in depth in Part III, infra.
39. See Workplace Bullying Institute, Past Versions of the Healthy Workplace Bill,
http://workplacebullyinglaw.org/states/past.html (last visited Feb. 3, 2009).
40. The Division of Occupational Safety is a division of the Department of Labor and is
responsible for promot[ing] and protect[ing] workers safety and health, wages and
working conditions. Division of Occupational Safety, http://www.mass.gov/?
pageID=elwdhomepage&L=1&L0=Home&sid=Elwd (follow Division of Occupational
Safety hyperlink) (last visited Feb. 3, 2009).
41. H.B. 3809, 184th Sess. (Mass. 2005) (presented by Rep. Ellen Story).
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and consideration of legislation on the floor of the House 42 but failed to

pass before the end of the legislative session. It was reintroduced in 2007, 43
but again languished in committee 44 before expiring in 2008. 45
This Note argues that the legislation proposed in Massachusetts to
address workplace bullying, though a step in the right direction, is
inadequate to protect Massachusetts employees from workplace bullying
and, accordingly, advocates for Massachusetts to adopt a stronger version
of the Healthy Workplace Bill drafted by Professor Yamada. Part I
discusses the growing phenomenon of workplace bullying, including the
effects it has on employees, employers, and ultimately the economy. Part II
addresses how current Massachusetts law is inadequate to address the
policy goals of preventing workplace bullying and compensating its
victims. Part III analyzes the Healthy Workplace Bill, discussing how its
provisions achieve the goals of prevention and compensation, and why
concerns that it will flood the courts with new lawsuits, though significant,
do not diminish the necessity of some form of legislative response. Part IV
explores how foreign legislatures have addressed workplace bullying. Part
V examines the anti-workplace-bullying legislation introduced in
Massachusetts, and, drawing upon Massachusetts status-based
discrimination laws and European anti-harassment laws, suggests
adjustments to the Bill that will strengthen its ability to prevent workplace
bullying and compensate its victims, while simultaneously reducing the
possibility of frivolous litigation. Finally, this Note concludes that
Massachusetts should curtail this rising problem by passing strong
legislation based on the Healthy Workplace Bill to protect its citizens from
workplace bullying.

I. The Growing Problem of Bullying in the American Workplace

Workplace bullying is also commonly referred to as psychological
harassment, 46 status-blind harassment, 47 or mobbing. 48 Whatever the name,

42. House Rules, http://www.mass.gov/legis/comm/h33.htm (last visited Feb. 3, 2009).

43. H.R. 1850, 185th Sess. (Mass. 2007) (presented by Rep. Ellen Story, Sponsor),
available at http://www.mass.gov/legis/bills/house/185/ht01pdf/ht01850.pdf.
44. House, No. 1850, http://www.mass.gov/legis/185history/h01850.htm (last visited
Feb. 3, 2009). The re-introduced Bill was referred to the Joint Committee on Labor and
Workforce Development, which consider[s] all matters concerning discrimination with
respect to employment, the labor laws, workers compensation and other such matters.
Joint Committee on Labor and Workforce Development, http://www.mass.gov/
legis/comm/j43.htm (last visited Oct. 26, 2008).
45. Workplace Bullying Institute, Workplace Bullying State Legislation- Massachusetts,
http://workplacebullyinglaw.org/states/legis-ma.html (last visited Feb. 9, 2009).
46. See H.R. 1850, 185th Sess. (Mass. 2007) (presented by Rep. Ellen Story, Sponsor).
47. Brady Coleman, Pragmatisms Insult: The Growing Interdisciplinary Challenge to
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it is an amorphous category of conduct that is typically defined as

repeated, health-harming mistreatment of one employee by one or more
others. 49 The mistreatment typically takes the form of verbal abuse,
threatening conduct, intimidation, humiliation or sabotage that prevents the
targeted employee from getting work done. 50 Some definitions of bullying
include unjustified criticism, social exclusion and isolation, excessive
monitoring and supervision, and swearing or shouting. 51 A key component
of workplace bullying is that it adversely impacts the targeted employees
health, relationships, or economic livelihood. 52 Moreover, workplace
bullying doesnt just harm the targeted employee: Workplace bullies also
do massive damage to . . . bystanders who suffer the ripple effects, [and
overall] organizational performance. 53

A. The Prevalence of Workplace Bullying

In a 2000 study of a representative sample of 700 Michigan workers
conducted by researchers Loraleigh Keashly and Karen Jagatic, 27% of
surveyed workers reported being mistreated by someone in the workplace,
with approximately one out of six of these workers complaining of
persistent psychological abuse. 54 According to a 2004 report from the
National Institute for Occupational Safety and Health, 24.5% of the private
and public organizations surveyed reported that some degree of bullying
had occurred at those workplaces during the preceding year, where
[b]ullying was defined as repeated intimidation, slandering, social
isolation, or humiliation. 55 Zogby Internationals 2007 study revealed that
37% of American workers reported having been bullied at work, while
49% reported being affected by workplace bullying either by experiencing

American Harassment Jurisprudence, 8 EMP. RTS. & EMP. POLY J. 239, 245 (2004).
48. Id. at 241. The term mobbing is used primarily in Europe. Id.
49. Workplace Bullying Institute, http://bullyinginstitute.org/education/bbstudies/def
.html (last visited Oct. 22, 2008).
50. ZOGBY, supra note 24, at 4.
51. STATE OF WASHINGTON DEPARTMENT OF LABOR AND INDUSTRIES, REPORT NO. 87-2-
2008, WORKPLACE BULLYING: WHAT EVERYONE NEEDS TO KNOW 1 (2008), available at
http://www.lni.wa.gov/safety/research/files/bullying.pdf.
52. NAMIE & NAMIE, supra note 25, at 3.
53. ROBERT I. SUTTON, THE NO ASSHOLE RULE 27 (2007).
54. Id. at 20.
55. National Institute for Occupational Safety and Health, NIOSH Update: Most
Workplace Bullying is Worker to Worker, Early Findings from NIOSH Survey Suggest, July
28, 2004, http://www.cdc.gov/niosh/updates/upd-07-28-04.html [hereinafter NIOSH].
NIOSH acknowledges that its results were based on a representative but small sample of
respondents. Id.
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it directly or by witnessing it. 56 And, according to a poll released by the

Employment Law Alliance in March 2007, a whopping 44% of American
workers reported working for an abusive supervisor or employer. 57
While these statistics may not withstand scientific scrutiny, 58 they do
show one thing: Workplace bullying is not an isolated problem and it needs
to be addressed in some form. 59

B. The Effects of Workplace Bullying on Employees

Workplace bullying can have devastating effects on the targeted
employee. 60 The most common psychological effects are stress and
anxiety. 61 Depression, mood swings, insomnia, and fatigue; and feelings of
low self-esteem, shame, and guilt are also commonly reported.62 Physical
effects of workplace bullying and the resulting stress include headaches,
high blood pressure, cardiovascular disease, digestive disorders,
immunological impairment, fibromyalgia, and chronic fatigue syndrome. 63
Given the potential for chronic health disorders, one might be tempted
to ask: Why doesnt the targeted employee just leave? 64 In fact, a large
majority of targeted employees do leave their jobs as a direct result of
bullying. 65 Leaving, though, is not always a viable option for financial
reasons, and [a] worker who relies on his job for economic survival is
effectively a captive audience for a harassing coworker. 66

56. ZOGBY, supra note 24, at 4.

57. Battle Scars: Readers Pour Out Tales of Abusive Bosses, BOSTON BUS. J., Apr. 9,
2007, available at http://boston.bizjournals.com/boston/stories/2007/04/09/story16.html?t=
printable.
58. See, e.g., NIOSH, supra note 61.
59. See Jodi Sokolowski, If Passed, Bills Could Study, Prohibit Workplace Bullying,
BUFF. L.J., Jan. 13, 2008, available at http://www.buffalolawjournal.com/article_view.asp?
IDNO=1024200713 (addressing the debate over whether workplace bullying should be
addressed through legislation or left to individual employers to handle internally).
60. Yamada, supra note 32, at 480.
61. NAMIE & NAMIE, supra note 25, at 61.
62. Yamada, supra note 32, at 480.
63. See id.; Workplace Bullying Institute, http://bullyinginstitute.org/health.html (last
visited Feb. 13, 2008).
64. This question, of course, places the burden of ending workplace bullying on the
innocent victim, while the bully is unpunished and free to torment other employees. See
Wendy N. Davis, No Putting Up with Putdowns, A.B.A. J., Feb. 2008, at 17 (Typically, . . .
people victimized by bad bosses end by quitting. It strikes me as being horrifically wrong,
Yamada says, that targets are the ones to pay the price.).
65. See, e.g., ZOGBY, supra note 24, at 16; see also SUTTON, supra note 53, at 29.
66. Rosa Ehrenreich, Dignity and Discrimination: Toward a More Pluralistic
Understanding of Workplace Harassment, 88 GEO. L.J. 1, 46 (1999).
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The bullys other captive audience, fellow employees who witness the
bullying but are not targets themselves, also suffer. 67 Bullies can poison
the entire workplace, creating an atmosphere of stress, fear, and mistrust,
leading to decreased productivity and sometimes causing employees who
merely witnessed bullying behavior to quit their jobs. 68

C. The Effects of Workplace Bullying on Employers

Workplace bullyings effect on targeted employees and bystanders
translates into an impact on the employers bottom line and on the overall
economy. 69 Abused employees are less productive, less invested in the
success of the company, and lose more time from work due to sick days as
a result of stress-induced illnesses. 70 They also file more health insurance,
workers compensation, and disability claims. 71 Moreover, while very few
targeted employees file formal discrimination complaints or lawsuits, 72
those that are filed obviously cause employers to incur litigation
expenses. 73 And, with the majority of targeted employees permanently
leaving their jobs to escape their bullies, 74 workplace bullying clearly
increases employee turnover, resulting in increased human resources costs,
decreased productivity, and an impaired ability to attract and retain talented
employees. 75

D. The Effects of Workplace Bullying on the Bottom Line

Workplace bullying does not only affect the individual employer. The
National Institute of Mental Health has estimated that, in 1989, depressive
illness cost the United States economy $27 billion, of which $17 billion
was related to worker absenteeism. 76 A 2002 study of 9,000 federal
employees who reported being harassed within a two-year period found the
abuse cost more than $180 million in lost time and productivity. 77 Other

67. See SUTTON, supra note 53, at 31.

68. See id. at 32-33.
69. EMILY S. BASSMAN, ABUSE IN THE WORKPLACE: MANAGEMENT REMEDIES AND
BOTTOM LINE IMPACT 137 (1992).
70. See SUTTON, supra note 53, at 49.
71. BASSMAN, supra note 69, at 137.
72. ZOGBY, supra note 24, at 14. Zogbys study indicates that less than three percent of
bullied employees file lawsuits, and less than four percent file formal discrimination
complaints with a federal or state agency. Id.
73. See BASSMAN, supra note 69, at 137.
74. ZOGBY, supra note 24, at 16.
75. SUTTON, supra note 53, at 36-37, 50-51.
76. BASSMAN, supra note 69, at 139.
77. Liz Urbanski Farrell, Workplace Bullyings High Cost: $180M in Lost Time,
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recent estimates suggest employee absenteeism costs the United States $74
billion annually. 78 Increased absenteeism due to workplace bullying no
doubt contributes to these economic losses. 79

II. Current Massachusetts Laws Failure to Sufficiently Address

Workplace Bullying
Because workplace bullying has a profound impact on both
employees and employers, any attempt to examine the potential legal
remedies should first take into consideration what the employees and
employers objectives are in addressing workplace bullying. 80 Both the
employee and the employer are best served by measures that address
preventing workplace bullying from occurring in the first place rather than
waiting until the incidents occur, thus eliminating the potential adverse
health and economic ramifications. 81 Such measures should encourage
civility and respectful treatment in the workplace, and ensure that
employers immediately investigate any reported abusive behavior and
enforce a no-tolerance policy whenever they find evidence of abuse. 82
Preventing workplace bullying spares the employer litigation costs and
potential liability and keeps additional litigation out of the legal system. 83
Punishing the bullyand the employer that fails to prevent bullyingis
one way to strive toward prevention, as punishment may have a deterrent
effect and discourage further bullying behavior in the workplace. 84
Compensating the targeted employee is also an important objective,
particularly where the bullying has resulted in psychological or physical
illness and where the employee has lost his or her jobeither voluntarily
or involuntarilyas a result of the harassment. 85 Any legal response to
workplace bullying therefore should punish the offender, compensate the
victim, and prevent further bullying. 86

Productivity, ORLANDO BUS. J., Mar. 15, 2002, available at http://Orlando.bizjournals.com/

Orlando/stories/2002/03/18/focus1.html?t=printable.
78. Mathiason & Savage, supra note 31 (citing Shirking Working: The War on Hooky,
BUS. WK. MAG., Nov. 12, 2007, available at http://www.businessweek.com/magazin
e/content/07_46/b4058065.htm).
79. See BASSMAN, supra note 69, at 142 (Abused employees frequently will show
increased absenteeism . . . . [A]bsenteeism or coming late to work [is] one sign of workplace
trauma.).
80. See Yamada, supra note 32, at 482.
81. Id. at 482-83.
82. See id. at 483-84.
83. Id. at 483.
84. Id. at 484.
85. Id. at 483.
86. Yamada, supra note 32, at 483-84.
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502 NEW ENGLAND LAW REVIEW [Vol. 43:491

There presently is no law in Massachusetts specifically outlawing

workplace bullying; 87 therefore, a targeted employee must turn to statutory
and common law tort principles for redress. 88

A. The Massachusetts Anti-Discrimination Statute

Massachusetts General Laws chapter 151B (Chapter 151B)
prohibits discriminating against an individual based on his or her race,
color, religious creed, national origin, sex, sexual orientation . . . or
ancestry, and declares such discrimination in an employment context to be
an unlawful employment practice. 89 The statute also mandates that
employers provide a workplace free of sexual harassment 90 and
characterizes hostile work environment harassment 91 as sexual
advances, requests for sexual favors, and other verbal or physical conduct
of a sexual nature when . . . such advances, requests or conduct have the
purpose or effect of unreasonably interfering with an individuals work
performance by creating an intimidating, hostile, humiliating or sexually
offensive work environment. 92 Additionally, Chapter 151B prohibits an
employer or co-worker from taking an adverse employment actionwhich
the Massachusetts Commission Against Discrimination (the MCAD) 93
has defined as encompassing termination, demotion or denial of promotion,
and hostile or abusive workplace treatmentin retaliation against an
employee who complains of an unlawful practice. 94
Thus, while this statutory scheme does address some form of
workplace bullying, it does not address conduct that is not sexual in nature
or tied to the targeted employees race, gender, age, or otherwise protected

87. See Workplace Bullying Institute, Workplace Bullying State Legislation,

http://workplacebullyinglaw.org/states/legis-ma.html (last visited Oct. 27, 2008).
88. See Yamada, supra note 32, at 484.
89. MASS. GEN. LAWS ch. 151B, 4(1) (2006).
90. Id. 3A(a).
91. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION, SEXUAL HARASSMENT IN
THE WORKPLACE GUIDELINES 4 (2002), http://www.mass.gov/mcad/shguide.html/#IIC.
92. Ch. 151B, 1(18).
93. The Massachusetts Commission Against Discrimination is the administrative agency
charged with promulgating policies to effectuate the purposes of Chapter 151B and
investigating and adjudicating claims of sexual harassment and unlawful discrimination. Ch.
151B, 2-3. See infra Part V.B.2 for an overview of MCADs adjudicatory process.
94. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION, SEXUAL HARASSMENT IN
THE WORKPLACE GUIDELINES 27 (2002), available at http://www.mass.gov/mcad/shtoc.html;
see also Gerrie v. Karl Storz Endovision, Inc., No. 992452A, 2005 WL 3722405, at *8
(Mass. Super. Ct. Dec. 29, 2005) (discussing the expansion of the adverse employment
action element of a retaliation claim under 151B to include hostile or abusive workplace
treatment).
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class status. 95 Massachusetts courts and the MCAD have specifically

refuted the idea that Chapter 151B protects against harassment not directly
tied to ones protected class status, noting that [t]he behavior of co-
workers who are unsociable and hard to get along with does not, by itself,
support a discrimination claim, 96 and that the law [does not] impose a
general civility code for the workplace. 97 As a result, employees who, like
Elvira DiLuca and Mary Coyne, are subjected to repeated, health-harming
psychological abuse stemming from a personal grudge or personality
conflict cannot prosecute a claim under Chapter 151B. 98

B. The Massachusetts Workers Compensation Act

Massachusetts General Laws chapter 152 (Chapter 152)
commonly referred to as the Massachusetts Workers Compensation Act
provides compensation for an employee who sustains a personal injury in
the course of his or her employment. 99 Under the statute, [p]ersonal
injuries . . . include mental or emotional disabilities only where the
predominant contributing cause of such disability is an event or series of
events occurring within any employment. 100 Psychological injuries
resulting from workplace bullying therefore theoretically could be
compensable under the workers compensation statute.
Pursuant to Chapter 152, an employee who loses more than five days
from work as a result of his or her injuries is reimbursed for lost wages at a

95. See, e.g., Thurston, 28 MDLR 242, 245-46 (Mass. Commn Against Discrimination
2006) (dismissing a complaint alleging sexual harassment and gender-based disparate
treatment where there was no evidence that the complained of conduct was sexual in nature
or based on the complainants protected class status); Arcadipane, 27 MDLR 1, 6 (Mass.
Commn Against Discrimination 2005) (dismissing a complaint alleging gender-based
harassment where there was evidence the alleged perpetrators bizarre behavior was
aimed at both male and female co-workers).
96. DiLuca v. Commcns and Power Indus., Inc., No. 00-02000, 2003 WL 21781564, at
*6 (Mass. Super. Ct. July 25, 2003) (citing Morrison v. Carleton Woolen Mills, Inc., 108
F.3d 429, 441 (1st Cir. 1997)).
97. Id. (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
98. See id. at *6-7 (dismissing claims brought under Chapter 151B because there was no
evidence the conduct complained of involved anything more than interpersonal conflicts);
Coyne, 27 MDLR 330, 331, 335 (Mass. Commn Against Discrimination 2006) (dismissing
MCAD complaint where there was no evidence the behavior complained of was directed at
Coyne because of her gender).
99. MASS. GEN. LAWS ch. 152, 26 (2006).
100. Id. 1.
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rate of 60% of his or her average weekly wage. 101 If the employees pre-
injury average weekly wage exceeds the statewide average weekly wage as
determined by the state, however, the employee is paid 60% of the state
average weekly wage, 102 which as of October 2007 was $1043.54. 103 Thus,
an employee who earns a higher than average salary may lose a significant
amount of money if he or she remains out of work due to a psychological
injury inflicted by a workplace bully. Injured employees are also entitled to
payment of medical bills related to their injuries, 104 but are not entitled to
recover for pain and suffering or punitive damages. 105
Moreover, almost all employees are precluded from pursuing any tort
action against their employers, regardless of whether their injuries are fully
compensated under Chapter 152, because the statute provides that
[a]n employee shall be held to have waived his right of action at
common law . . . in respect to an injury that is compensable
under this chapter, to recover damages for personal injuries, if he
shall not have given his employer, at the time of his contract of
hire, written notice that he claimed such right . . . . 106
Since few if any employees reserve their right to sue their employer at
the time of hire, workers compensation is therefore the exclusive remedy
for an employee who sustains a personal injury arising out of his or her
employment, including a psychological injury suffered as a result of
bullying by a co-worker. 107
Chapter 152 thus inadequately compensates employees for the
psychological damage workplace bullies inflict and denies them the
opportunity to institute legal action against the employers who fail to
prevent the bullying from occurring in the first place.

101. See id. 34. The employees average weekly wage is calculated by dividing the
employees gross earnings during the preceding twelve calendar months by fifty-two. Id.
1.
102. Id. 34.
103. Circular Letter 323 from Paul V. Buckley, Commissioner of the Massachusetts
Department of Industrial Accidents, to All Interested Persons, (Oct. 5, 2007), available at
http://www.mass.gov/dia (search circular letter 323; then follow CL 323 COLA
Adjustments . . . hyperlink).
104. Ch. 152, 30.
105. See id. 30, 31, 34-36 (setting forth the various benefits available to injured
employees but not listing compensation for pain and suffering or punitive damages among
them).
106. Id. 24.
107. See Green v. Wyman-Gordon Co., 664 N.E.2d 808, 813 (Mass. 1996).
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C. Intentional Infliction of Emotional Distress

Because the targeted employee is unable to bring a common law
action against his or her employer, 108 his or her only option for legal
redress is to sue the bully, 109 most often under the tort theory of intentional
infliction of emotional distress. 110
In Massachusetts, a plaintiff alleging intentional infliction of
emotional distress must prove:
(1) that the actor intended to inflict emotional distress or that he
knew or should have known that emotional distress was the
likely result of his conduct, (2) that the conduct was extreme
and outrageous, was beyond all possible bounds of decency
and was utterly intolerable in a civilized community, (3) that
the actions of the defendant were the cause of the plaintiffs
distress, and (4) that the emotional distress sustained by the
plaintiff was severe and of a nature that no reasonable man
111
could be expected to endure it.
Massachusetts highest court, the Supreme Judicial Court, has held
that a defendants conduct does not necessarily have to consist of one or
more extreme acts; actions which, when viewed singularly, are not
considered extreme can reasonably be found to be extreme and outrageous
when they are repeated as part of a pattern of harassment. 112 In Boyle v.
Wenk, the plaintiff had been recently released from the hospital, and the
defendants conduct consisted of making late night phone calls to her after
she asked him not to call again. 113 Later, after she informed him that she
was terrified of him, he told the plaintiff (in person) that he had been in jail
for rape. 114 The court held that the defendants conduct may reasonably be
viewed as an attempt to intentionally shock and harm a persons peace of
mind by invading the persons mental or emotional tranquility, and
therefore could be declared extreme and outrageous. 115 Similarly, in

108. See, e.g., id.

109. See, e.g., Brown v. Nutter, McClennen & Fish, 696 N.E.2d 953, 956 (Mass. App. Ct.
1998) (stating that the workers compensation statute does not immunize a co-employee
from tort liability if the tortious conduct occurs outside the scope of the co-employees
employment and is not in furtherance of the employers business interests).
110. See William R. Corbett, The Need for a Revitalized Common Law of the Workplace,
69 BROOK. L. REV. 91, 120-21 (2003).
111. Agis v. Howard Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976) (citations
omitted).
112. See Boyle v. Wenk, 392 N.E.2d 1053, 1056 (Mass. 1979).
113. Id. at 1054-55.
114. Id.
115. Id. at 1055.
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506 NEW ENGLAND LAW REVIEW [Vol. 43:491

George v. Jordan Marsh Co., the defendants conduct consisted of repeated

harassing phone calls and letters that persisted even after the defendants
were informed that their actions were adversely affecting the plaintiffs
health. 116 In both cases, the court suggested that the defendants
knowledge that the plaintiff was particularly susceptible to infliction of
emotional distress supported a finding that the behavior was extreme and
outrageous. 117
While it would seem that bullying behavior that adversely affects an
employees health could qualify as extreme and outrageous,
unfortunately most intentional infliction of emotional distress claims
arising out of typical status-neutral workplace bullying do not result in a
finding of liability. 118 One reason for this is that an employee alleging
intentional infliction of emotional distress must first show that the bullys
conduct was not related to the employers business interests to avoid
preclusion by the workers compensation statute. 119 When the bully is a
direct supervisor, this can be a difficult hurdle to overcome: In Anzalone v.
Massachusetts Bay Transportation Authority, the court held that the
conduct of a supervisor who ordered a police officer recovering from a
smoke inhalation injury to perform menial tasks such as washing cars,
forced him to work in an unventilated room in 100 degree heat, and
allowed other workers to smoke in the plaintiffs office while he was
working in it, was related wholly to his position as [the officers]
supervisor and to the manner in which [he] exercised his supervisory
duties. 120 Furthermore, it is difficult for plaintiffs to prove that the
complained of conduct is sufficiently extreme[] and outrageous to justify
a finding of liability. 121 Indeed, Massachusetts Supreme Judicial Court has
established that:
Liability [for intentional infliction of emotional distress] cannot
be predicated on mere insults, indignities, threats, annoyances,
petty oppressions or other trivialities nor even is it enough that
the defendant has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress, or
even that his conduct has been characterized by malice or a
degree of aggravation which would entitle the plaintiff to
punitive damages for another tort. 122

116. George v. Jordan Marsh Co., 268 N.E.2d 915, 915-16 (Mass. 1971).
117. Boyle, 392 N.E.2d at 1056; George, 268 N.E.2d at 921.
118. See Corbett, supra note 110, at 121; Yamada, supra note 32, at 485.
119. See OConnell v. Chasdi, 511 N.E.2d 349, 351-52 (Mass. 1987).
120. Anzalone v. Mass. Bay Transp. Auth., 526 N.E.2d 246, 248-49 (Mass. 1988).
121. Yamada, supra note 32, at 485.
122. Tetrault v. Mahoney, Hawkes & Goldings, 681 N.E.2d 1189, 1197 (Mass. 1997)
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2009] THE HEALTHY WORKPLACE BILL IN MASSACHUSETTS 507

Additionally, the emotional and physical effects of workplace

bullying, though significant, often do not rise to the level of severity
necessary to impose liability for intentional infliction of emotional
distress. 123 In Elvira DiLucas case, her intentional infliction of emotional
distress claim against co-worker Anna Lohnes was dismissed even though
the court found clear evidence that DiLuca was suffering emotional
distress, and . . . much of that distress arose from her interactions at
work. 124 The court ruled nonetheless that she could not meet her burden of
establishing that her stress was caused by Lohnes actions, and not her
own disposition. 125
Because so few employees who are victimized by workplace bullying
can succeed on an intentional infliction of emotional distress claim, it is
clear that this tort remedy is really no remedy at all.126

III. The Healthy Workplace Bill

In response to the perceived inadequacies in existing law, Professor
David C. Yamada 127 drafted the Healthy Workplace Bill (the Bill), 128 a
model piece of legislation designed as a prototype for state and local
governments considering legislation to address workplace bullying. 129 The
stated purpose of the Bill is twofold: First, to provide legal redress for
employees who have been harmed, psychologically, physically, or
economically by being deliberately subjected to abusive work
environments; and second, to provide legal incentive for employers to
prevent and respond to mistreatment of employees . . . . 130

(citing Foley v. Polaroid Corp., 508 N.E.2d 72 (Mass. 1987)).

123. See Yamada, supra note 32, at 487.
124. DiLuca v. Commcns & Power Indus., Inc., No. 00-02000, 2003 WL 21781564, at
*8 (Mass. Super. Ct. July 25, 2003).
125. Id.
126. See Corbett, supra note 110, at 121; Yamada, supra note 32, at 485.
127. David Yamada is a tenured Professor of Law at Suffolk University Law School in
Boston and an internationally recognized authority on the legal implications of workplace
bullying and abusive work environments. Suffolk University Law School: Faculty Profile
Page, http://www.law.suffolk.edu/faculty/directories/faculty.cfm?InstructorID=59 (last
visited Feb. 3, 2009).
128. Yamada, supra note 32, at 517-21.
129. Id. at 478. In drafting the Bill, Yamada worked closely with the Workplace Bullying
& Trauma Institute, an organization that has taken the lead . . . in educating employee
advocates, policy makers and the general public on the importance of enacting anti-bullying
legislation. Id. at 477.
130. Id. at 518.
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508 NEW ENGLAND LAW REVIEW [Vol. 43:491

A. Key Provisions of the Bill

The Bill declares subjecting an employee to an abusive work
environment to be an unlawful employment practice, 131 and defines an
abusive work environment as exist[ing] when the defendant, acting with
malice, subjects the complainant to abusive conduct so severe that it causes
tangible harm to the complainant. 132 Malice as defined by the Bill is:

the desire to see another person suffer psychological, physical, or

economic harm, without legitimate cause or justification. . . .
[and] can be inferred from . . . outward expressions of hostility;
harmful conduct inconsistent with an employers 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 complainants known
133
psychological or physical vulnerability.
The Bill defines abusive conduct as acts or omissions that a
reasonable person would find hostile, offensive, and unrelated to an
employers legitimate business interests. 134 Examples of such conduct
include 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 persons work performance. 135 A
fact finder attempting to determine whether a plaintiff has been subjected to
abusive conduct must consider the severity, nature, and frequency of the
defendants conduct. 136 A single act or omission normally will not qualify
as abusive conduct unless it is especially severe and egregious. 137 In
defining abusive conduct, Yamada consciously rejected the tougher
standard found in intentional infliction of emotional distress claims
outrageous behavior beyond the bounds of civilized societyand
instead adopted the Supreme Courts reasonableness standard for
defining a hostile work environment under the federal sexual harassment

131. Id. at 519.

132. Id. at 518.
133. Id.
134. Yamada, supra note 32, at 518.
135. Id. at 518-19.
136. Id. at 518.
137. Id. at 519. The Bill does not specify what act would be especially severe and
egregious. Id.
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2009] THE HEALTHY WORKPLACE BILL IN MASSACHUSETTS 509

statute, 138 thereby aligning his Bill more closely with sexual harassment
jurisprudence than with common-law tort theories. 139 As in sexual
harassment cases, retaliation against an employee who complains of
abusive conduct or testifies, participates or assists in an investigation, or
proceeding arising from an abusive work environment allegation would
also be illegal. 140
An employee who is subjected to an abusive work environment can
only seek redress through a private lawsuit, which must be filed within one
year of the last act of abusive conduct. 141 The Bill does not provide for any
bureaucratic or administrative oversight. 142 The Bill eliminates a states
workers compensation statutes bar against common-law actions brought
against an employer or co-employee; but an employee can elect to pursue a
workers compensation claim in lieu of an action under the proposed
statute. 143 An employee who files a workers compensation claim waives
the right to bring a suit alleging an abusive work environment based upon
the same underlying behavior. 144
To prevail on an abusive work environment claim, a plaintiff will
have to demonstrate material impairment of the employees mental
health . . . physical health or bodily integrity. 145 Such impairment must be
documented by either a competent psychologist, psychiatrist, or
psychotherapist or a competent physician, or it must be supported by
competent expert evidence at trial. 146
The Bill imposes vicarious liability upon an employer, holding it
responsible for an employees abusive conduct; 147 however, this liability
can be capped at $25,000 if the employer did not make a negative
employment decision affecting the abused employee. 148 The term
negative employment decision encompasses termination, demotion,
unfavorable reassignment, refusal to promote, or disciplinary action. 149 A
constructive discharge, where an employee complains of abusive conduct

138. Id. at 499 (drawing upon the Supreme Courts attempt to define a hostile work
environment in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23 (1993)).
139. See id.
140. Yamada, supra note 32, at 520.
141. Id. at 521.
142. See id.
143. See id.
144. Id.
145. See id. at 519.
146. Yamada, supra note 32, at 519.
147. Id.
148. Id. at 520-21.
149. Id. at 519.
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510 NEW ENGLAND LAW REVIEW [Vol. 43:491

and ultimately resigns because the employer fails to address the situation,
also qualifies as a negative employment decision. 150 There is no such limit
on the offending employees liability under any circumstances. 151 An
employer may avoid liability altogether only if the employer exercised
reasonable care to prevent and correct promptly any actionable behavior,
and if the plaintiff unreasonably failed to take advantage of appropriate
preventative or corrective opportunities provided by the employer. 152 As
with the reasonableness standard incorporated into the definition of abusive
conduct, this affirmative defense framework is also drawn from sexual
harassment jurisprudence. 153 Yamadas intent in allowing the employer to
escape liability by taking preventative and corrective measures was to
encourage employers to adopt workplace bullying policies just as they have
adopted sexual harassment policies, thereby demonstrating that bullying
can be incorporated into their personnel policies rather seamlessly. 154 A
defendant employees only available defense is that the plaintiffs
complaint is without merit because it is based on a legitimate negative
employment decision justified by the complaining employees poor
performance, or is based on a defendants legitimate investigation of
alleged illegal or unethical acts. 155
If liability is established, a plaintiff may obtain injunctive relief, such
as an order prohibiting the defendant from engaging in the complained-of
conduct, reinstating the employee to his or her former position, or even
removing the offending party from the workplace. 156 A plaintiff can also
obtain monetary relief, including awards of back pay, front pay, medical
expenses, compensation for emotional distress, punitive damages, and
attorneys fees. 157

B. Critical Response to the Bill

Most criticism of the Bill focuses on its perceived overbreadth and
potential for a flood of frivolous lawsuits. 158 Opponents argue that
workplace bullying is too hard to define, too amorphous, and too subjective

150. Id.
151. See id. at 521.
152. Yamada, supra note 32, at 520.
153. Id. at 502 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).
154. Id. at 503.
155. Id. at 520.
156. Id.
157. Id.
158. See, e.g., Corbett, supra note 110, at 124; Davis, supra note 64, at 16-17.
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2009] THE HEALTHY WORKPLACE BILL IN MASSACHUSETTS 511

to effectively regulate. 159 What one employee may consider constructive

criticism, a more sensitive employee might consider malicious
persecution. 160 Employers thus may be burdened with defending meritless
lawsuits brought by disgruntled employees dissatisfied with poor
performance evaluations, or employees who simply cannot get along with
their co-workers. 161 Critics view the Bill as, essentially, a legislatively-
imposed civility code, 162 which is exactly what courts have attempted to
avoid by requiring a showing of extreme and outrageous behavior
beyond all possible bounds of decency 163 in intentional infliction of
emotional distress cases. 164 Moreover, because specific bullying behavior
and the impact it has upon the victim can vary widely, critics fear litigation
of such claims will yield inconsistent results, with large damage awards
turn[ing] on the sensitivities of the particular jury empanelled and the
eggshell of the plaintiff. 165
Yamada attempted to curtail these criticisms and minimize frivolous
litigation by requiring a showing of malice and tangible harm. 166 He
anticipated that these requirements would provide a legal remedy to victims
of severe bullying but would prevent victims of more moderate bullying
and employees asserting frivolous claimsfrom successfully prosecuting
an abusive work environment claim. 167 He suggests that because of the
inclusion of these elements, the Bill unfortunately, but necessarily,
sacrifices the legitimate claims of insidious, hard-to-prove bullying in the
name of protecting the judicial system from an onslaught of frivolous
litigation. 168
Another criticism of the Bill is that it is actually ineffective and does
not provide targeted employees with a meaningful opportunity to
recover. 169 Lawsuits are expensive, and many employeesparticularly
ones who have either quit their jobs or been terminated as a direct result of

159. See, e.g., Corbett, supra note 116, at 124.

160. See Sokolowski, supra note 65.
161. Id.
162. See, e.g., id.
163. Agis v. Howard Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976) (citations
omitted).
164. See Tetrault v. Mahoney, Hawkes & Goldings, 681 N.E.2d 1189, 1197 (Mass. 1997)
(citing Foley v. Polaroid Corp., 508 N.E.2d 72 (Mass. 1987)); see also Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
165. Mathiason & Savage, supra note 31.
166. Yamada, supra note 32, at 499-501.
167. Id. at 499-500.
168. See id.
169. See Davis, supra note 64, at 17.
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512 NEW ENGLAND LAW REVIEW [Vol. 43:491

workplace bullyingsimply cannot afford to pursue a claim. 170 Moreover,

with a potential cap on damages, many employees could pay more to bring
a suit than they could recover. 171 Critics argue that providing for agency
oversight of such claims rather than an automatic civil action might reduce
costs and more effectively compensate victims of workplace bullying. 172
Yamada actually considered but deliberately chose not to involve an
administrative agency in his plan for adjudicating abusive work
environment claims and, surprisingly, views the potential high cost of
litigation as a positive. 173 His main reason for not involving an agency was
to discourage the filing of weak or frivolous claims. 174 An agency would
provide representation to litigants who cannot afford an attorney, which
could potentially allow for employees with weak claims to file
complaints. 175 Additionally, Yamada anticipated that because of the
limitation on damages, the plaintiffs bar would weed out weak and
frivolous claims because attorneys would refuse to take cases where the
chance for recovery was slim; this screening process would not occur in an
agency setting. 176 While Yamada recognized that this would result in some
victims with viable claims being unable to seek legal redress, he opined
that such a sacrifice was necessary to limit the number of claims brought
under the statute. 177 Additionally, proponents of the Bill view the lack of
agency involvement as a selling point, noting that passing the Bill will not
burden the state with additional regulatory responsibilities or require
additional funding. 178

IV. International Approaches to Workplace Bullying

Of course, workplace bullying is not just an American phenomenon,
and the United States is not the first country to try to address it. 179 Sweden
was the first European Union country to legislatively address workplace
bullying, which is known there as moral harassment. 180 Swedens

170. See id.

171. See, e.g., id.
172. See id.
173. See Yamada, supra note 32, at 505.
174. Id.
175. See id.
176. See id.
177. Id.
178. See, e.g., California Healthy Workplace Advocates, Stop Workplace Bullying!
Proposed Bill . . ., http://www.bullyfreeworkplace.org/id8.html (last visited Jan. 22, 2009).
179. NAMIE & NAMIE, supra note 25, at 91.
180. Maria Isabel S. Guerrero, Note, The Development of Moral Harassment (or
Mobbing) Law in Sweden and France as a Step Towards EU Legislation, 27 B.C. INTL &
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Ordinance on Victimization at Work mandates that employers adopt

policies for detecting and correcting unsatisfactory working conditions,
problems of work organization, or deficiencies of co-operation which
could lead to victimization, and develop procedures to assist employees
who are victimized. 181 The Ordinance does not provide a private cause of
action or other specific legal remedy for victims, and it is not clear what the
penalty for violating this law would be. 182
In the United Kingdom, employers have a general duty to protect
employees health and safety, and can be responsible for an employees
damages when an employee suffers an injury. 183 Guidelines published by
the British Health and Safety Executive regarding an employers duty to
prevent stress at work provide that bullying can be a cause of employee
stress and must be eliminated. 184 Thus, under United Kingdom tort law, an
employer can be held responsible under common law negligence principles
for failing to prevent workplace bullying. 185
Likewise, Australia imposes upon employers a common law duty to
protect employees from workplace bullying. 186 Employers have a duty to
provide a safe workplace, free from workplace bullying and thus can be
found liable both in tort under a theory of negligence, 187 and in contract
under a duty not to destroy or seriously damage the relationship of trust
and confidence between employer and worker. 188 Employers who do not
adequately prevent workplace bullying may be liable for the victims
physical and psychological injuries. 189

COMP. L. REV. 477, 486 (2004) (quoting Ordinance of the Swedish National Board of
Occupational Safety and Health Containing Provisions on Measures Against Victimization
at Work, Ordinance AFS 1993:17 4).
181. Id. Victimization is defined rather broadly as recurrent reprehensible or distinctly
negative actions which are directed against individual employees in an offensive manner
and can result in those employees being placed outside the workplace community.
Ordinance of the Swedish National Board of Occupational Safety and Health Containing
Provisions on Measures Against Victimization at Work, Ordinance AFS 1993:17 1
(adopted Sept. 23, 1993, entered into force March 31, 1994), available at
www.diritto.it/osservatori/diritti-umani/mobbing/ordinance-swed.html.
182. Guerrero, supra note 180, at 487.
183. NAMIE & NAMIE, supra note 25, at 95-96.
184. Id. at 96.
185. See id. at 96-97.
186. Id. at 97.
187. Id.
188. Id.
189. NAMIE & NAMIE, supra note 25, at 91.
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514 NEW ENGLAND LAW REVIEW [Vol. 43:491

France has much stronger anti-bullying legislation. 190 The Labor

Code there provides that no employee shall suffer repeated acts of moral
harassment [i.e., workplace bullying], which have the purpose or effect of
causing a deterioration in working conditions by impairing the employees
rights and dignity, affecting the employees physical or mental health, or
compromising the employees professional future. 191 An employee cannot
be terminated or otherwise discriminated against for having complained of
moral harassment, and the head of the company must take all actions
necessary to prevent harassment in the workplace, including disciplinary
sanctions against the offending employee. 192 The penalty under the Labor
Code is one year in prison and/or a fine of 3,750 Euros, in addition to the
victims damages. 193 Under the French Penal Code, which employs
essentially the same definition of moral harassment as the Labor Code,
bullies can be punished by one year in prison and a fine of 15,000 Euros. 194
The Canadian province of Quebec has also enacted strong legislation
against psychological harassment. 195 The Quebec statute enacted in 2004
defines psychological harassment as any vexatious behaviour in the form
of repeated and hostile or unwanted conduct, verbal comments, actions or
gestures that affects an employees dignity or psychological or physical
integrity and that results in a harmful work environment for the
employee. 196 The statute mandates that employers take reasonable steps
to prevent psychological harassment and, whenever they become aware of
such behaviour, to put a stop to it. 197 Aggrieved employees must file a
complaint with the Labor Standards Commission, which investigates and
refers meritorious claims to mediation. 198 The Commission then refers
complaints that are not settled at mediation to the Labor Relations Board,
which has the authority to order the employer to reinstate the employee,
pay the employee lost wages and punitive damages, and pay for the
employees psychological support. 199

190. See Guerrero, supra note 180, at 491.

191. Id. at 492.
192. Id.
193. Id. at 491.
194. Id.
195. See generally, Debra Parkes, Targeting Workplace Harassment in Quebec: On
Exporting a New Legislative Agenda, 8 EMP. RTS. & EMP. POLY J. 423, 434-38 (2004).
196. LSA, R.S.Q. ch. N-1.1 81.18(1).
197. 81.19(2).
198. Parkes, supra note 195, at 436.
199. Id.
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V. The Massachusetts Legislatures Response to Workplace

Bullying

A. The Massachusetts Bill

In 2004, voters in the Third Hampshire District of Hampshire County,
Massachusetts, overwhelmingly passed a non-binding voter initiative
directing the districts representative in the state legislature to introduce
legislation addressing workplace psychological harassment. 200 As a
result, State Representative Ellen Story introduced House Bill 3809 (the
Massachusetts Bill) in January, 2005. 201 The text of the Massachusetts
Bill, titled An Act relative to bullying in the workplace reads:
The division of occupational safety shall conduct a study
analyzing the direct and indirect costs of workplace
psychological harassment for workers and their families as
reflected in healthcare and insurance rates. The division shall
develop a program requiring employers with 50 or more
employees to establish, no later than December 31, 2005, a
policy that defines psychological harassment and prevents its
occurrence. 202
Upon its introduction, the Massachusetts Bill was referred to the
House Rules Committee, which is responsible for scheduling legislation to
be heard on the floor of the House, 203 but it was not heard before the end of
the legislative session. 204 Representative Story introduced an identical
billHouse Bill 1850in 2007. 205 The reintroduced Massachusetts Bill
was referred to the Joint Committee on Labor and Workforce
Development, which considers matters involving employment, 206 but the

200. See Workplace Bullying Institute, Workplace Bullying State Legislation,

http://workplacebullyinglaw.org/states/legis-ma.html (last visited Jan. 22, 2009).
201. Id.
202. H.B. 3809, 184th Sess. (Mass. 2005) (Rep. Ellen Story, Sponsor).
203. House Rules, http://www.mass.gov/legis/comm/h33.htm (last visited Mar. 17,
2008).
204. With over 6,000 pieces of legislation filed in the Massachusetts Congress each year,
the majority of bills are not heard during the first session in which they are introduced.
Telephone interview with Brad Dye, Legislative Aide, in Boston, Mass. (Mar. 31, 2008).
205. H.B. 1850, 185th Sess. (Mass. 2007) (Rep. Ellen Story, Sponsor); H.B. 3809.
206. Joint Committee on Labor and Workforce Development, http://www.mass.gov
/legis/comm./j43.htm (last visited Mar. 17, 2008).
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Bill again failed to pass before the end of the legislative session. 207
Representative Story has indicated she will re-file the Massachusetts Bill in
2009. 208

B. Proposal to Improve Massachusettss Legislative Response to

Workplace Bullying
In its current state, the Massachusetts Bill is not strong enough to
protect Massachusetts employees from workplace bullying. 209 It fails to
provide an avenue for victimized employees to seek compensation for their
physical or psychological injuries, lost wages and other damages. 210
Further, while it would mandate that employers of a certain size adopt
policies to prevent bullying, it does not appear to authorize imposition of a
penalty for breaching said policies, nor does it offer any protection to
employees working at small companies with fewer than fifty employees. 211

1. Create a Private Cause of Action

If this legislation does pass, either in 2009 or later upon another
reintroduced bill, the Massachusetts legislature should strengthen the bill
by adopting the framework set forth in Yamadas proposed Healthy
Workplace Bill. Specifically, the Massachusetts bill should be amended to
include a cause of action against workplace bullies and the employers who
fail to prevent and address bullying. This would serve the important policy

207. See Workplace Bullying Institute, Workplace Bullying State Legislation-

Massachusetts, http://workplacebullyinglaw.org/states/legis-ma.html (last visited Feb. 9,
2009). The author of this Note interviewed Representative Storys legislative aide, Brad
Dye, in March 2008 when the Massachusetts Bills was pending before the Joint Committee
on Labor and Workforce Development. According to Mr. Dye, the next step in the
legislative process at that time was for the Joint Committee on Labor and Workforce
Development to issue a report on House Bill 1850. Telephone interview with Brad Dye,
Legislative Aide, in Boston, Mass. (Mar. 31, 2008). The Committee could have issued a
study order, essentially killing the Bill, or it could have reported the Bill with a
recommendation ought to pass or ought not to pass, and scheduled it for a House vote.
Id. Mr. Dye indicated that as of March 2008, Representative Story expected that the Bill
would not pass during the 2007-2008 session, but was pleased that public awareness of
workplace bullying was increasing and support for a legislative response to workplace
bullying was growing. Id.
208. Workplace Bullying Institute, Workplace Bullying State Legislation- Massachusetts,
http://workplacebullyinglaw.org/states/legis-ma.html (last visited Feb. 9, 2009).
209. Cf. Yamada, supra note 32, at 483-84 (explaining the important policy objectives of
any legislative response to workplace bullying).
210. See H.B. 1850.
211. See id.
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objectives of compensating victims, punishing bullies, and deterring future

bullying in the workplace, 212 and would also give teeth to the preventative
measures that the Massachusetts Bill mandates.

2. Provide Administrative Agency Adjudication of Claims

The Massachusetts Bill should differ from Yamadas model Bill in
one important aspect: The legislature should follow the example set by the
Quebec anti-harassment statute 213 and give the Massachusetts Commission
Against Discrimination the authority to adjudicate claims brought under the
statute. The MCAD is currently responsible for establishing policies to
effectuate the purposes of Chapter 151B, Massachusetts anti-
discrimination statute. 214 The MCAD also investigates and adjudicates
claims of sexual harassment and unlawful discrimination, including
complaints alleging unlawful employment practices. 215 As sexual
harassment claims frequently involve allegations of a hostile work
environment, the MCAD is well equipped to handle non-status-based
harassment claims, and already has the procedural framework in place to
do so. 216
Under the existing procedures set forth under Chapter 151B, any
employee claiming to have been subject to an unlawful practice as defined
by the statute must file a complaint with the MCAD within 300 days of the
prohibited act. 217 Both the offending employee and the employer can be
named in the complaint, as the employer is liable for its employees
wrongful acts. 218 The complaint is then assigned to a single commissioner
to promptly investigate the claim. 219 If the commissioner determines after
the investigation or a preliminary hearing that there is probable cause to
support the complaint, 220 the commissioner may either attempt to eliminate
the unlawful practice through conference, conciliation, and persuasion,221

212. See Yamada, supra note 32, at 483-84.

213. See supra Part IV.
214. MASS. GEN. LAWS ch. 151B, 1-3 (2006).
215. Id. 3.
216. See MASSACHUSETTS COMMN AGAINST DISCRIMINATION, SEXUAL HARASSMENT IN
THE WORKPLACE GUIDELINES 4 (2002).
217. Ch. 151B, 5.
218. Id.
219. Id.
220. Probable cause is established when the commissioner determines that there is
sufficient evidence upon which a fact-finder could form a reasonable belief that it is more
probable than not that the respondent committed an unlawful practice. 804 MASS. CODE
REGS. 1.15(7)(a) (2005).
221. See id. at 1.18. The MCADs goal is to work for the remedy best designed to
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518 NEW ENGLAND LAW REVIEW [Vol. 43:491

or issue a notice to the employer named in the complaint ordering it to

answer the charges of the complaint at a hearing before the MCAD. 222 If,
after considering all the evidence presented at the hearing, the MCAD finds
in favor of the employee, it must issue written findings of fact and an order
requiring the employer to cease and desist from the unlawful employment
practice. 223 The MCAD shall also order the employer to hire, reinstate or
promote the complaining employee, with or without back pay, and may
order the employer to pay the employees reasonable attorneys fees and
costs [in any successful action]. 224 Additionally, the MCAD has discretion
to fashion such relief as will effectuate the purposes of Chapter 151B. 225
Either party may seek judicial review of the MCADs decision by filing a
complaint in the Commonwealths Superior Court. 226 The employee has
the right to withdraw his or her complaint and file suit in Massachusetts
Superior Court ninety days after filing the complaint if the MCAD has not
adjudicated the matter by then, or earlier if the MCAD gives its
permission. 227
Abusive work environment claims would fit seamlessly into this
procedural framework, which provides employees with the opportunity to
be compensated for the harms suffered as a result of bullying and punishes
the offending employee and employer. Additionally, the agency can screen
out weak or frivolous claims, thereby reducing the likelihood of a flood of
litigation hitting the already-burdened Massachusetts courts, and can
provide equal access to relief for bona fide claimants who cannot afford
costly litigation. 228 Because this agency already exists and, in fact, already

eliminate and prevent discrimination. Id. at 1.02. It therefore promotes resolving unlawful
employment practice claims supported by probable cause through early conciliation, where
the investigating commissioner attempt[s] to achieve a just resolution of the complaint and
to obtain assurances that the [employer] will satisfactorily remedy any violations of the
rights of the aggrieved person, and take such action as will assure the elimination of
discriminatory practices, or the prevention of their occurrence, in the future. Id. at
1.18(i)(a). Efforts to resolve the claim through conciliation end when the commissioner
determines a voluntary agreement is unlikely. Id. at 1.18(i)(d).
222. MASS. GEN. LAWS ch. 151B, 5 (2006). If the commissioner does not find probable
cause to support the complaint, he or she must dismiss the complaint and issue a lack of
probable cause finding within ten days of such determination. 804 MASS. CODE REGS.
1.15(7)(b) (2005).
223. Ch. 151B, 5.
224. Id.
225. 804 MASS. CODE REGS. 1.22(1) (2005).
226. Ch. 151B, 6.
227. 5.
228. See Davis, supra note 64, at 17 (suggesting agency oversight as a means of cutting
down on frivolous claims and providing more legitimate victims with the opportunity to
obtain compensation).
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2009] THE HEALTHY WORKPLACE BILL IN MASSACHUSETTS 519

hears claims brought under Chapter 151B that perhaps would be more
appropriately brought under an anti-bullying statute, 229 Yamadas concern
with creating new bureaucracy to deal with anti-bullying claims would be
moot. 230

CONCLUSION
Workplace bullying is a growing problem in American workplaces. It
has detrimental effects on victimized employees, witnesses, and the
employers bottom line. Unfortunately, existing law does not adequately
protect employees from non-status-based harassment, and targeted
employees too often find no remedy in the courts. Massachusetts legislators
seemingly have recognized this gap in the law and have introduced
legislation that addresses workplace bullying. Unlike the model Healthy
Workplace Bill, which creates a new cause of action for employees who are
subjected to workplace bullying, the bill introduced in Massachusetts, if
passed, would merely authorize a study of the effects of workplace bullying
and require certain employers to develop internal policies to define and
prevent it. While the model Healthy Workplace Bill may not be perfect, it
can serve as a vital starting point for Massachusetts legislators who want to
improve upon the workplace bullying bill previously introduced in the
Massachusetts House of Representatives. By strengthening the
Massachusetts Bill to include a private cause of action and allow MCAD
adjudication of bullying claims, the legislature can give Massachusetts
employees the opportunity to obtain justice and compensation for their
injuries from their bullies and the employers who fail to protect them.

229. See, e.g., Coyne, 27 MDLR 330, 334 (Mass. Commn Against Discrimination
2005).
230. See California Healthy Workplace Advocates, supra note 183.