Employee Survival Guide® - Make Bullying Illegal

Episode Date: February 3, 2026

Comment on the Show by Sending Mark a Text Message.When does “tough management” cross the line into abuse—and why does U.S. law look away unless discrimination is involved? We dig into the numbers, the stories, and the legal framework that leave millions unprotected, then make the case for a simple, powerful fix that aligns the law with the harm workers actually endure. From soaring bullying rates to the stark reality that targets lose their jobs more often than bullies face consequences, we show how the current system incentivizes silence and erodes trust.We walk through the legal standard for harassment, the protected-class requirement that shields “equal opportunity” abusers, and the real-world outcomes that follow. You’ll hear why 87% of Americans—across party and ideology—support anti-bullying legislation, yet statehouses repeatedly stall. We examine Puerto Rico’s comprehensive law as proof of concept, assess renewed efforts in New York, Rhode Island, Massachusetts, and West Virginia, and explore an alternative framework focused on prevention and employer duties. Along the way, we confront a hard truth about the judiciary: if courts can’t police bullying in their own chambers, can they fairly judge these cases?This conversation doesn’t stop at policy. We map out practical steps for those facing abuse—documenting incidents, using internal channels, seeking medical support, and working with counsel to identify viable claims and safer exits. The path forward is clear: remove the protected-class requirement so severe or pervasive bullying is unlawful, period. We already know how to define hostile environments and balance interests; it’s time the law protected dignity without caveats.If this resonates, share the episode, leave a review, and hit follow. Your voice helps push lawmakers to act and gives targets a reason to speak up. If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts and Spotify. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer: For educational use only, not intended to be legal advice.

Hey, it's Mark here. Welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about. And a lot more. Welcome back. It's Mark. And today's topic is workplace bullying. In December 2025, NPR reported that a nonprofit organization had filed a misconduct complaint against Judge Sierra Miriam of the U.S. Court of Appeals for the Second Circuit. I'm a member of that court. one of the most powerful federal appellate courts in the country. The allegations that she yells, berates, and sends all caps unhinged emails to her law clerks. According to Legal Accountability Project, which filed the complaint, one clerk quit after just one month, and four others withdrew job offers after learning about the work environment. This wasn't even the first complaint. In 2003, an internal investigation found evidence of an overly harsh management style,

the remedy. the judge agreed to watch some workplace conduct videos and receive counseling. Problem solved, except, of course, it wasn't. The complaints kept coming. If a federal judge, someone entrusted with interpreting and applying the law cannot be meaningfully held accountable for bullying behavior in our own chambers. What does that tell us about the state of workplace bullying law in America? The answer is both simple and damning. There is none. The problem persists, and it's getting worse. In October 2020, 19% of American workers reported being directly bullied, affecting approximately 60 million workers. We warned that the lack of legal protections left workers vulnerable and that legislative action was urgently needed.

Five years later, the situation has grown worse. The 2004 workplace bullying survey revealed that 32% of American workers now report being directly bullied at work. That's approximately 52 million workers. When you include those who witness bullying, the number of effective workers climbs to nearly 75 million Americans. This isn't a workplace problem. It's an epidemic. The demographics of bullying remain deeply troubling. African-American workers experience bullying at a rate of 44% sniffingly higher than the national average. LGBTQ workers report even higher rates at 51%.

Women comprise 51% of the targets, while men account for a staggering 71% of the targets. while men account for a staggering 71% of perpetrators. Supervisors and bosses remain the most frequent bullies, responsible for 55% of workplace bullying. Perhaps the most disturbing is what happens to workers who are bullied. They have 62% chance of losing their jobs. They are terminated, forced to quit, or constructively discharged. Meanwhile, the bullies?

Well, they face negative consequences only 27% of the time. The math is brutal. If you're bullied at work, you're more than twice as likely. to lose your job as the bully is to face an accountability. The legal gap. Bullying is just harassment without any protected class. Here's one of the most glaring and fundamental problems with American employment law, and I've been in this area for a long time. Harassment is perfectly legal unless it targets someone because of their membership

and a protected class. Under Title VII and its state equivalence, unlawful harassment is conduct that is sufficiently severe or pervasive to alter the conditions self-employment and create a hostile and abusive work environment. Sounds like a lot. I know. Courts evaluate whether the conduct would be offensive to a reasonable person. That means you. And whether the victim subjectively perceived it as such. Again, that means you. This is the legal standard that protects workers from sexual harassment, racial harassment, and harassment based on religion, national origin, disability, age, and any other protected

characteristics. But strip away the protected class requirement of what do you have, the exact same conduct, but it's just legal. Consider this. If a supervisor screams at an employee daily sends threatening emails and humiliates them in front of colleagues, avatages their work, and creates such a hostile environment that the employee suffers anxiety, depression, and physical health problems, that conduct is entirely lawful. The long as the supervisor isn't doing it because the employee is a woman or black or disabled or over 40. This is absurd. The harm is identical. The conduct is identical. The impact on employees' health, livelihood, and dignity is identical. Yet our legal system says the bully is an equal opportunity abuser. If they treat

everyone with the same contempt, then the victim has no recourse. I don't like this rule, but that's what we're talking about today. The late Justice Scalia once mourned against turning Title VII into a general civility code for the American workplace. His concern was that courts would be flooded with petty grievances, and they're not equipped with handling HR problems. But Justice Scalia had it backwards. The question isn't whether we should police every minor slate. It's whether we should permit systemic psychological abuse simply because the abuser doesn't discriminate in choosing victims. Americans agree the law is wrong. If you think only plaintiff's employment lawyers like myself hold this view, think again. In 24th survey asked Americans whether they should or would

support a law allowing workers to sue employers who fail to prevent workplace bullying. The results were overwhelming. 87% of Americans support such a law. This isn't a partisan issue. Support cross all identical and political lines. 82% of conservatives, 75% of moderates, 92% of liberals. Along political parties, 84% of Republicans and 92% of Democrats.

And 85% of independents. Only 8% of Americans said current laws are adequate. I don't know what the hell is I were thinking. When any of 87% of Americans across political spectrum agree that something should be legal, And it isn't. Something is profoundly wrong with our legislative process. The legislative landscape, a graveyard of good intentions. Since 2003, the Workplace Bullying Institute has advocated for the Healthy Workplace Bill. It's model legislation drafted by a university professor that would create a civil cause of action for severe workplace bullying.

The bill has been introduced in 32 states over two decades. Not one state has passed it into law. The only jurisdiction to enact comprehensive work. workplace anti-bullying legislation is Puerto Rico, the land of bad buddy, which passed it an act in 2020. That law signed despite mass opposition from private sector. Yeah, surprise, which defines workplace harassment as malicious, unwanted, repetitive, and abusive conduct that creates an intimidating, humiliating, hostile, and offensive work environment. It requires employers to adopt preventive policies, allows employees to sue for damages, and provides for automatic doubling of any damages or award it. In the U.S., nothing. Rhode Island has come closest. The Workplace Psychological Safety Act

passed the state Senate multiple times but died. The bill has been introduced again in 2025. Meanwhile, New York's statute, the Healthy Workplace Bill passed out of the Senate, and in May 2025, it awaits further action. Massachusetts and West Virginia have also introduced versions of the legislation in 2025. The same professor who drafted the model legislation drafted a new alternative approach, the Workplace Bullying Accountability Act, which emphasizes employer prevention and response duties, rather than solely relying on civil litigation. It's being introduced in several states starting in 2025. Perhaps this framework will break through where others have failed. But I'm not optimistic. Business lobbying groups continue, as they always do,

oppose any legislation, claiming it would create liability for aggressive management styles and discourage employers from pushing for excellence. This frame. is dishonest. The legislation targets repeated severe healthy harming abuse, not tough feedback on high standards. The fact that employers fear liability tells you they know bullying is happening in their workplaces and they don't want to be responsible for and nor do they want to stop it. The judge problem. Who polices the police? Which brings me back to Judge Sarah Muriam, which I've appeared before. And the judge, the federal judiciary's inability to police itself. Law clerks occupy an extraordinary vulnerable position. Their young attorneys often fresh out of law school, who depend

on their judge for career-making recommendations. Federal clerkships are prestigious, and clerks are expected to endure whatever their judges dish out. People who work for the courts don't enjoy the same implement protections that most other Americans do. Complaints are handled internally, but courts by the courts and they police themselves, in part to protect the judiciary's independence. The result, it's a culture of fear about reporting judges, as NPR's investigation found. When Judge Miriam was previously investigated, her punishment was watching workplace training videos and receiving counseling. If this is meaningful accountability, then our standards have collapsed entirely. And here is the uncomfortable question we must ask. If a federal judge cannot or will not police bullying

in their own chambers, how can we expect them to fairly adjudicate workplace cases if such laws are ever enacted. This is not an abstract concern. Judges who bully their own law clerks or who tolerate such behavior from colleagues may be predisposed to view aggressive management as acceptable. They may dismiss employees' claims as overtly sensitive. They may identify with defendant employers rather than plaintiff workers, which I strongly believe that they already do. The judiciary is fair to hold its own accountable doesn't just harm law clerk. It calls into question whether judges can be impartial arbiters of workplace abuse claims that I will bring on behalf of my clients. A simple solution. The solution to America's workplace bullying epidemic is straightforward.

Remove the protected class requirement from the harassment law. We already have decades of well-developed legal standards for what constitutes actionable harassment. We know how to evaluate whether conduct is sufficiently severe or pervasive. We know how to assess hostile work environments. We know how to balance employer interests against employee dignity. We know how to provide affirmative offenses for employers who take reasonable, preventive, and we want them to take reasonable preventive and corrective actions. The only thing we need to change is removing the requirement that the harassment be because of a protected characteristic. If context is a severe or pervasive enough to create a hasa work environment, if it would be objectively offensive

to a reasonable person, that means you, it should be unlawful, period. This isn't a radical proposal, it's the logical extension of principles we already accept. We've already decided as a society that workers shouldn't have to endure abusive, hostile work environments. That's the law. We've just arbitrarily limited that protection to certain categories of workers. Those who can prove that their abuser selected them because of their identity rather than for some other reason, or for no reason at all. The Healthy Workplace Bill and the Workplace Building Accountability Act Both offer viable legislative frameworks. Puerto Rico has shown it can be done.

Other countries, including much of Europe, already protect workers from psychological abuse without requiring proof of discriminatory intent. Enough is enough. In 2012, we asked, when are they going to enact a general civility code for the American workplace? Five years later, the answer is clear.

Not yet, and not without a fight. But 52 million bullied workers can't wait forever. 75 million effective Americans deserve better, and when 87% of the public supports legal protection and only 8% think the status quo is acceptable, it's time for legislators to listen. If you're being bullied at work, you don't have to suffer in silence. When the law is inadequate, a skilled employment attorney may be able to identify related claims, retaliation, discrimination, intentional affliction of emotional stress, or help you navigate the internal complaint processes and negotiate exits.

Document everything, as I always said. report through proper channels, seek medical help if your health is suffering, and know that the problem isn't you. The problem is a legal system that says some abuse is unacceptable, and some is just fine, depending on why the bully chooses you as a target. That's not justice. It's an accident of legislative history that we have to have the power to change. It's time to make the workplace bullying illegal, full stop. Hope you enjoyed the episode. Have a great week. Thank you for let me being of service, as always. Hey, it's Mark, and thank you for listening to this episode of the Employees FI-E-Gide.

If you'd like to be interviewed for our podcast and share your story about what you're going through at work and do so anonymously, please send me an email at MCA-R-E-Y at C-A-P-C-Law.com. And also, if you like this podcast episode and others like it, please leave us a review. It really does help others find this podcast. So leave a review on Apple or Spotify or wherever you listen to this podcast. Thank you very much. And I'm glad to be a service to you.