State of Illinois Representative Arthur L. Turner introduced the Abusive Work Environment Act on January 29, 2009. If enacted, this new law would broaden the rights of employees but create a risk of liability no employer should have to consider. Pursuant to the bill, an employee or former employee may sue an employer for “abusive conduct,” defined 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.” Abusive conduct may include “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 humiliation; or the gratuitous sabotage or undermining of a person’s work performance.”
Employers would have an affirmative defense. No abusive conduct occurs, if the employer “exercised reasonable care to prevent and promptly correct the abusive conduct” and the employee “unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer.”
An employee or former employee would have one year to file a complaint in state court. Remedies would include an injunction against an employer, removal of the offending party from the complainant’s work environment, reimbursement for lost wages, medical expenses, emotional distress, punitive damages and attorneys’ fees. Such cases would be heard by either judges or juries.
Alan M. Kaplan urges all employers to contact their Illinois representatives and senators to express their opinion regarding the proposed statute. Employers are concerned that the definition of “abusive conduct” is broad and vague, which may cause an abuse of the legal system by supposedly aggrieved employees. These employees will force employers to defend these suits all of the way through trial, because only a judge or jury can determine if a “reasonable” person would find the alleged conduct hostile or offensive. Judges and juries will be substituting their judgment for the judgment of employers who want and need to encourage work performance that improves the productivity of the workplace.