International HR Best Practices Tip of the Month (October 2010)

Abusive Workplace Claims: The Experience of French and English Employers

Earlier this year, the New York State Senate passed a bill to outlaw "abusive work environments" in New York by creating a civil cause of action against employers who fail to prevent "abusive conduct" against their employees. The bill died in the Assembly, but supporters have vowed to bring it back next year.

Employers cannot help but see this as the "full-employment-for-lawyers" law. Although the legislative findings at the front of the bill state that a mere 16 to 21 percent of the workforce have experienced an abusive work environment that would come within the act's prohibitions, conventional wisdom suggests that the number of employees in the State who do not feel they have been abused at work at some time in their careers can probably be counted in the low single digits. Even if the number of persons who could actually prove that their experience was sufficiently abusive to meet the statutory definition of actionable conduct is much less, employers fear the cost of defending the nonmeritorious claims even more than the damages that will be assessed in the meritorious ones.

The concept of civil damages for an abusive work environment – still unknown in U.S. law – is an accepted part of the European legal landscape. A look across the ocean may give U.S. employers some idea of what to expect.

Moral Harassment under French Law

In 2002, France introduced legislation to prevent and sanction bullying and other kinds of behaviors that threaten the dignity of individuals at work. The enactment of this law was motivated by the groundwork of international institutions, especially the International Labor Office's 1999 studies on the prevalence of harassment and the Revised European Social Charter of May 3, 1996, which provided this definition of bullying: "recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work."

Under French law, bullying and other kinds of behaviors that violate the dignity of an individual at the workplace fall under the general term of "moral harassment." In legal terms, moral harassment is defined by a prohibition: no employee shall suffer repeated acts of moral harassment that are aimed at, or may result in, a degradation of his or her working condition and are likely to harm his or her individual rights and dignity, or affect his or her health or career. This definition based on the intent and outcome of acts sets the scope for a wide range of possibilities and has given rise to an extensive body of case law.

Moral harassment can manifest in physical, psychological and sexual forms and varies from cold-shoulder treatment to cold-blooded violence. The most recent phenomenon recognized by the courts, and perhaps most concerning to companies, is "institutional harassment," a degradation of working conditions due to harmful policies or management practices.

In addition to generally prohibiting moral harassment, the French Labor Code also includes a positive duty for...