Welcome back. It's Mark, and today's topic is workplace bullying. In December 2025, MPR reported that a non-profit organization had filed a misconduct complaint against Judge Sarah 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 2023, 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 2024 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 affected workers climbs to nearly 75 million Americans. This isn't a workplace workplace problem, it's an epidemic. The demographics of bullying remain deeply troubling. African American workers experience bullying at a rate of 44%, significantly 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 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 account 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 in a protected class. Under Title VII and its state equivalents, unlawful harassment is conduct that is sufficiently severe or pervasive to alter the conditions of 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 protective characteristics. But strip away the protective class requirement. 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, humiliates them in front of colleagues, sabotages their work, and creates such a hostile environment that the employee suffers anxiety, depression, and physical health problems, that conduct is entirely lawful. So 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 the employee's 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 yet that's what we're talking about today. The late Justice Scalia once warned 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. 87% of Americans support such a law. This isn't a partisan issue. Support crossed all identical and political lines. 82% of conservatives, 75% of moderates, 92% of liberals, among 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 they were thinking. But 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 2020 or 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 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 awarded. 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 reintroduced, introduced again in 2025. Meanwhile, New York's statute, the Healthy Workplace Bill, passed out of the Senate in May 2025 and 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 framing is dishonest. This leg 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 it, 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 extraordinarily vulnerable position. They're 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 employment protections that most other Americans do. Complaints are handled internally by 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 MPR'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's 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 overly sensitive. They may identify with defendant employers rather than plaintiff workers, which I strongly believe that they already do. The judiciary's failure 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 actual 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 defenses 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 conduct is severe or pervasive enough to create a hostile 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 a 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 abusers 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 2020, 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 infliction of emotional stress, or help you navigate the internal complaint processes and negotiate exits. Document everything, as I always say. 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 letting me be of service, as always.