Text of Amendment of SB 1035 submitted by WBI to the Legislative Counsel for consideration by the Senate Rules Committee SECTION 2. (1) Abusive work environment. As used in this section, an "abusive work environment" exists when the defendant, acting with malice, subjects the complainant to abusive conduct so severe that it causes tangible harm to the complainant. (a) Conduct. Conduct is defined as all forms of behavior, including acts and omissions of acts. (b) Malice. For purposes of this section, malice is defined as the desire to see another person suffer psychological, physical, or economic harm, without legitimate cause or justification. Malice can 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. (c) Abusive conduct. Abusive conduct is conduct 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 defendant's 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, but an especially severe and egregious act may meet this standard. (d) Tangible harm. Tangible harm is defined as psychological harm or physical harm. (i) Psychological harm. Psychological harm is 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. (ii) Physical harm. Physical harm is 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. (iii) Negative employment decision. A negative employment decision is a termination, demotion, unfavorable reassignment, refusal to promote, or disciplinary action. (iv) Constructive discharge. A constructive discharge shall be considered a termination, a negative employment decision within the meaning of this section. (2) Unlawful employment practice. It shall be an unlawful employment practice under this section to subject an employee to an abusive work environment as defined by this section. (3) Employer vicarious liability. An employer shall be vicariously liable for an unlawful employment practice, as defined by this section, committed by its employee. (4) Employer affirmative defense. It shall be an affirmative defense for an employer only that: (a) the employer exercised reasonable care to prevent and correct promptly any actionable behavior; and, (b) the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer. (c) This defense is not available when the actionable behavior culminates in a negative employment decision. (5) Employer damages. Where an employer has been found to have committed an unlawful employment practice under this section that did not culminate in a negative employment decision, its liability for damages for emotional distress shall not exceed $25,000, and it shall not be subject to punitive damages. This provision does not apply to individually named co-employee defendants. (6) General affirmative defenses. It shall be an affirmative defense that: 1. 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, 2. the complaint is grounded primarily upon a defendant's reasonable investigation about potentially illegal or unethical activity. (7) Retaliation. It shall be an unlawful employment practice under this section to retaliate in any manner against an employee because she has opposed any unlawful employment practice under this section, or because she has made a charge, testified, assisted, or participated in any manner in an investigation or proceeding under this section, including, but not limited to, internal complaints and proceedings, arbitration and mediation proceedings, and legal actions. Compare the above to the actual Proposed Amendments of SB 1035-1 created on 5/10/07 by the Legislative Counsel (LC 3763, CJC) and presented at the May 11, 2007 hearing in the Senate Rules Committee