The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act.University of Cincinnati Law Review (2010)
AbstractThis paper explores the potential for harnessing the OSH Act and the OSHA regulatory apparatus to tackle the widespread problem of workplace bullying. Workplace bullying is a phenomenon that has attracted a considerable amount of domestic and international inter-disciplinary attention. It can be described as psychological or emotional abuse occurring regularly, repeatedly, and over a period of time. Common types of overt behavior include constant criticism, shouting and verbal abuse, persistently picking on the victim, and repeatedly assigning unreasonable or impossible targets or deadlines. In an earlier article, I explained how the experience of the United Kingdom in combating workplace bullying can provide lessons for similar efforts in the United States. See Susan Harthill, Bullying In the Workplace: Lessons From the United Kingdom, 17 MINN. J. INT’L L. 247 (2008). This paper builds on that article, but shifts focus solely to the U.S. by proposing a new regulatory alternative, viewing workplace bullying through the lens of existing federal occupational safety and health law, regulations and guidelines, and utilizing new governance theory to identify and harness informal mechanisms to bolster the efficacy of the existing federal occupational safety and health regulatory apparatus. This paper first analyzes workplace bullying as an occupational safety and health concern covered by the OSH Act, thereby already obligating employers to take feasible measures to prevent and abate this problem. First, I examine whether the OSH Act can be interpreted to obligate employers to provide a workplace free from workplace bullying, through the general duty clause of the Act. Then, because some courts and even the OSH Administration itself have expressed a preference that workplace hazards, including workplace violence generally, be addressed through specific regulations and not by reliance on the general duty clause, I also argue that the OSH Administration could promulgate a specific standard addressing the problem, given the evidence of the prevalence, costs and health impact of workplace bullying. The paper also argues that the problem of workplace bullying requires a multi-pronged approach. I argue that a top-down, stand-alone regulation and enforcement approach is insufficient. Drawing upon new governance principles, an integrated approach is required, combining top-down traditional enforcement with a collaborative, cooperative effort, utilizing the OSH Administration, NIOSH, employers, unions and employees in a form of self-regulation. Utilizing OSHA to address workplace bullying is not without its drawbacks, and I address those shortcomings and potential solutions. I conclude that, despite its shortcomings, OSHA’s existing regulatory scheme should incorporate workplace bullying because OSHA is a singularly appropriate vehicle for such efforts and because prevention of workplace bullying through an existing scheme complements efforts to enact new legislation specifically addressing the problem.
- occupational safety and health
Publication DateSummer August 10, 2010
Citation InformationSusan Harthill. "The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act." University of Cincinnati Law Review Vol. 78 Iss. 4 (2010)
Available at: http://works.bepress.com/susan_harthill/1/