On June 25, 2013, the Massachusetts General Court’s (the State Legislature) Joint Committee on Labor and Workforce Development  held a hearing on, among other items, HB 1766, the Healthy Workplace Bill.  The bill would create a new Chapter 151G of the General Laws; Section 3(a) is the key provision.  It states “No employee shall be subjected to an abusive work environment.”  An abusive work environment under the bill is one where the employer or employees subjects the victim to “abusive conduct” intentionally causing physical or psychological harm.  “Abusive conduct” is defined as including repeated “derogatory remarks, insults, and epithets…conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee’s work performance.” A single instance may be sufficient to give rise to a violation.   A claim may be made directly against the employer and the offending employee via direct lawsuit; unlike racial or sexual harassment claims, there is no prerequisite of filing with the Massachusetts Commission Against Discrimination.  A victim may be awarded back pay, front pay, emotional distress damages, punitive damages, and attorney’s fees, among other things.  It puts the burden on the employer to prove a defense that the complaint was the result of a reasonable performance evaluation, poor performance, or misconduct.

The law is being promoted in Massachusetts, with variants nationwide, to fill a perceived gap.  Claims for intentional infliction of emotional distress may require a physical manifestation that does not always occur.  Claims for tortious interference with contractual relationship lack an emotional distress component and may require additional proof to give rise to liability.  Defamation claims are of no use when the vitriol is actually true, though it is said offensively.  Anti-discrimination laws only protect against harassment on the basis of protected class status (e.g., race, gender, religion, orientation). 

Such a law, if passed, should give a Massachusetts employer pause.  If an employee has a bad day and becomes angry with another employee, the employer may become liable.  If an employer places an employee on a performance improvement plan due to poor performance, the employer has to prove the performance was poor, unlike simply arguing such claim is not pretext as in discrimination claims.  An accused employer or employee may be protected, however, under the First Amendment to the U.S. Constitution.  Prof. Eugene Volokh has analyzed a number of cases on the question of workplace harassment and the First Amendment, finding that the issue remains an open one.