HB0374 96TH GENERAL ASSEMBLY

LRB096 03420 AJO 13444 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB0374

Introduced 1/30/2009, by Rep. Arthur L. Turner

SYNOPSIS AS INTRODUCED:

New Act

Creates the Abusive Work Environment Act. Finds that the well-being of the State relies upon healthy employees free of abusive work environments. Defines "abusive conduct" as 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; and "abusive work environment" as a workplace where an employee is subjected to abusive conduct so severe that it causes physical or psychological harm to the employee. Provides that it is an unlawful to subject an employee to an abusive work environment or to retaliate against an employee who acted pursuant to the Act or filed an action or participated in any proceeding under the Act. Provides that an employer is liable for an abusive work environment under its control. Provides that it is an affirmative defense to an abusive work environment action: if the employer exercised reasonable care to prevent and correct abusive conduct and the employee failed to take advantage of those opportunities; or, if the filed action is based upon a negative employment decision that is consistent with the employer's legitimate interests. Provides that a defendant who engaged in abusive conduct or who maintained an unlawful abusive work environment may be enjoined and an order may provide other relief including reinstatement, removal of the offending party from the work environment, lost wages, medical expenses, emotional distress damages, punitive damages, and attorney's fees. Provides that if an employer maintained an abusive work environment that did not result in a negative employment decision, the employer's liability for damages for emotional distress may not exceed $25,000 and no punitive damages may be awarded. Provides that the Act is enforceable by a civil action filed by an injured employee. Provides that an action may be filed no later than one year after the last act that comprises the unlawful actions. Provides that no provision of the Act shall exempt any person from any liability, duty, or penalty provided by State law or rule. Provides that the Act's remedies are in addition to workers' compensation remedies.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Abusive Work Environment Act.

Section 5. Legislative findings and intent.

(a) The General Assembly hereby finds and declares that:

(1) the social and economic well-being of the State is reliant upon healthy and productive employees;

(2) surveys and studies have documented that between 16 and 25% of employees directly experience health-endangering workplace bullying, abuse, and harassment, which is 4 times more prevalent than sexual harassment alone;

(3) further studies and surveys have documented that abusive work environments can have severe effects on targeted employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, post-traumatic stress disorder, reduced immunity to infection, stress-related gastrointestinal disorders, hypertension, and pathophysiological changes that increase the risk of cardiovascular diseases;

(4) surveys and studies have documented that abusive work environments can have serious consequences for employers, including reduced employee productivity and morale, higher turnover and compensation claims;

(5) unless mistreated employees have been subjected to abusive treatment in the workplace for unlawful discriminatory reasons, they are unlikely to have legal recourse to redress such treatment;

(6) legal protection from abusive work environments should not be limited to behavior grounded in protected class status as required by employment discrimination statutes; and

(7) existing worker's 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.

(8) to this end, the General Assembly 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.

Section 10. Definitions. In this Act:

"Abusive conduct" means 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.

"Abusive work environment" means a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee.

"Conduct" means all forms of behavior, including acts and omissions of acts.

"Constructive discharge" means 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.

"Malice" means 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.

"Negative employment decision" means a termination, constructive discharge, demotion, unfavorable reassignment, refusal to promote, or disciplinary action.

"Physical harm" means 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.

"Psychological harm" means 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.

Section 15. Abusive work environment. It is an unlawful employment practice to subject an employee to an abusive work environment.

Section 20. Retaliation. It is unlawful to retaliate in any manner against an employee because he or she has opposed any unlawful employment practice under this Act, or because he or she has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this Act including, but not limited to, internal proceedings, arbitration and mediation proceedings, and legal actions.

Section 25. Employer liability. An employer is vicariously liable for the existence of an abusive work environment within any workplace under its control.

Section 30. Defenses. Each of the following subsections is an affirmative defense to a cause of action for an abusive work environment:

(a) The employer exercised reasonable care to prevent and promptly correct the abusive conduct which is the basis of such cause of action and the aggrieved employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer. This affirmative defense shall not be available to an employer when the abusive conduct culminates in a negative employment decision with regard to the aggrieved employee.

(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 as the complaint is grounded primarily upon an employer's reasonable investigation of potentially illegal or unethical activity.

Section 35. Remedies.

(a) Where a defendant has been found to have engaged in abusive conduct, or caused or maintained an unlawful abusive work environment, a court may enjoin the defendant from engaging in such illegal activity and may order any other relief that is appropriate including, but not limited to, reinstatement, removal of the offending party from the complainant's work environment, reimbursement for lost wages, medical expenses, compensation for emotional distress, punitive damages, and attorney's fees.

(b) Where an employer has been found to have committed an unlawful abusive work environment that did not result in a negative employment decision, the employer's liability for damages for emotional distress may not exceed $25,000 and the employer may not be liable for punitive damages. The provisions of this subsection do not apply to individually named co-employee defendants.

Section 40. Enforcement.

(a) The provisions of this Act are enforceable by a civil cause of action commenced by an injured employee.

(b) An action commenced under this Act may be commenced no later than one year after the last act that comprises the alleged unlawful employment practice.

Section 45. Effect of other laws.

(a) No provision of this Act shall be deemed to exempt any person or entity from any liability, duty, or penalty provided by any other State law, rule, or regulation.

(b) The remedies of this Act are in addition to remedies available pursuant to the workers' compensation laws. However, a person who believes that he or she has been subjected to an unlawful employment practice under this Act may elect to accept workers' compensation benefits in connection with the underlying behavior in lieu of bringing an action under this Act. A person who elects to accept workers' compensation may not commence a cause of action under this Act for the same underlying behavior.