So what if the New York Court of Appeals held its aggravated harassment law unconstitutional? Who cares if Albany County’s cyberbullying law is unconstitutional? Not the New York Senate, which just finished up with a revenge porn law embodying every constitutional failing it could think up. Certainly, there must be more they can do to keep the courts busy?
Just in the nick of time, the Senate Labor Committee voted in favor of its workplace bullying bill, called the “Healthy Workplaces.” Who doesn’t want healthy workplaces?
S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON HEALTHY AND PRODUCTIVE EMPLOYEES. AT LEAST ONE-THIRD OF ALL EMPLOYEES DIRECTLY EXPERIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT DURING THEIR WORKING LIVES. SUCH FORM OF MISTREATMENT IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT ALONE. WORKPLACE BULLYING, MOBBING AND HARASSMENT CAN INFLICT SERIOUS HARM UPON TARGETED EMPLOYEES, INCLUDING FEELINGS OF SHAME AND HUMILIATION, SEVERE ANXIETY, DEPRESSION, SUICIDAL TENDENCIES, IMPAIRED IMMUNE SYSTEMS, HYPERTENSION, INCREASED RISK OF CARDIOVASCULAR DISEASE, AND SYMPTOMS CONSISTENT WITH POST-TRAUMATIC STRESS DISORDER.
Wow. That sounds pretty darned serious, “four times more prevalent than sexual harassment alone, workplace bullying, mobbing and harassment” can cause feelings of “shame and humiliation.” So what is this terrible conduct they seek to outlaw? Obviously, it’s “abusive conduct.”
“ABUSIVE CONDUCT” MEANS ACTS, OMISSIONS, OR BOTH, THAT A REASONABLE PERSON WOULD FIND ABUSIVE, 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.
So “abusive conduct” is conduct that “a reasonable person would find abusive”? Not to be uncaring, but that’s meaningless. And that makes it par for the legislative course in New York, and pretty much everywhere else.
Before the howling starts, this isn’t a defense of workplace bullying. There’s no reason for anyone to behave poorly toward others in the workplace, though what constitutes poor behavior remains the problematic question. There are a great many people who complain that they are treated poorly at work, by employers, by supervisors and by co-workers. Whether that’s the case, or they are particularly sensitive, is a question that’s difficult to answer.
But what cannot happen, yet appears to be happening in law after law, is that laws are being enacted with no cognizable meaning, words left undefined so that no one could possibly have a clue what conduct is prohibited.
Hans Bader points out that such laws carry a heavy price in the chilling of speech, since one can never be sure what can be said that won’t cause another person “shame and humiliation.” This law addresses both acts and omissions, so does it suggest that telling an employee that the work stunk because their work, well, stunk, is forbidden? Or does it mean that the failure to praise work because it didn’t stink is abusive too?
But nowhere does it define “abusive,” since it’s impossible to define a word by using the word itself.
On the bright side, this law doesn’t create a crime, unlike some of the other misbegotten laws enacted recently. Rather, this gives rise to a cause of action against an employer for damages should an employee suffer the shame and humiliation of being abused in the workplace. Yet another avenue of exposure for employers, but a good reason to keep plenty of red balloons on hand.
Perhaps there are specific areas of conduct that are well proscribed, such as the use of racial or gender epithets to address employees. There is never an acceptable reason to use them, and there is no excuse why an employer can’t keep the workplace free of such conduct. And certainly no one should ever lay a hand on an employee. But there are already laws against such conduct, and that’s not what this law prohibits. What does it prohibit? Who knows?
There are two recurrent themes in laws designed to stem the tide of hurt feelings and unhappiness: first, they seek to proscribe conduct based upon how the “victim” perceives it rather than the conduct itself. Second, these laws are framed in language so vague and meaningless that no one could possibly comprehend what is prohibited.
This trend toward facially meaningless laws designed to promote happiness will no doubt be applauded by those who feel victimized, whether in the workplace, schoolyard or on the internet. But they’re bad laws. No so much because they seek to protect people from harm, and not because there isn’t harm from which people deserve to be protected, but because these laws use words that don’t mean anything.
These are inane laws, unconstitutional laws, and can’t withstand scrutiny. Whether there is a good way to define the conduct worthy of proscription isn’t clear. Perhaps there is a good law to be had with a whole lot more work and deeper thought that will identify particular conduct that should properly be prohibited from the workplace.
But without definitions, without words that convey specific meaning so that people will know what they can and cannot do, these laws are bad and dangerous. Sorry if this hurts your feelings.