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makes it unlawful for an employer to subject an employee to an
“abusive work environment,” defined as “when the defendant,
acting with malice,^106 subjects the complainant to abusive
conduct^107 so severe that it causes tangible harm to the
complainant.”^108 The model act explicitly states that a single act
would not constitute “abusive conduct,” unless it is “especially
severe and egregious.”^109
Furthermore, under the proposed legislation, liability is not
limited to the bully as an individual.^110 The employer can be held
vicariously liable for both an employee’s abusive conduct and
bullying between coworkers.^111 However, employers are
provided two affirmative defenses.^112 The first affirmative
defense is available when the employer “exercised reasonable
care to prevent and correctly prompt any actionable behavior,”
and the employee “unreasonably failed to take advantage of
appropriate preventative or corrective opportunities provided by
the employer.”^113 The second affirmative defense is available
when the employee’s “complaint is grounded primarily upon a
negative employment decision made consistent with an
(^106) “[M]alice” is defined as “the desire to see another person suffer
psychological, physical, or economic harm without legitimate case or
justification” and may be inferred from the bully’s conduct, including
“outward expressions of hostility” and “harmful conduct inconsistent with an
employer’s legitimate business interests,” among others. Id. at 518.
(^107) “Abusive conduct” is “conduct that a reasonable person would find
hostile, offensive, and unrelated to an employer’s legitimate business
interests.” Id. In considering whether conduct is “abusive,” the trier should
“weigh the severity, nature, and frequency” of the bully’s conduct, such as
intimidation, humiliation, and repeated verbal abuse.” Id.
(^108) Id. For the full text of the model act as proposed by Yamada in 2004,
see id. at 517–21.
(^109) Id. at 519.
(^110) Id.
(^111) Id.
(^112) Affirmative defenses under the model act are similar to those provided
to employers in sexual harassment cases. For more information, see U.S.
EQUAL EMP’T OPPORTUNITY COMM’N, NO. 915.002, ENFORCEMENT
GUIDANCE ON VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL
HARASSMENT BY SUPERVISORS (1999), available at http://www.eeoc.gov/
policy/docs/harassment.html.
(^113) Yamada, Crafting a Legislative Response, supra note 27, at 520.