U.S. Civil Rights Laws & Workplace Bullying at Schools

The Office for Civil Rights of the  U.S. Department of Education issued a guidance on Oct. 26, 2010 reminding schools that federal civil rights laws also may protect students who are bullied.  Although the DOE does not address this in the guidance, federal civil rights laws also apply to workers at educational institutions receiving federal funds (this may also include libraries, training programs, etc.). Therefore, this guidance is relevant to victims of workplace bullying at educational institutions. PGB

Here is a short excerpt from the Office of Civil Rights guidance:

… In recent years, many state departments of education and local school districts have taken steps to reduce bullying in schools. The U.S. Department of Education (Department) fully supports these efforts. Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential.

The movement to adopt anti-bullying policies reflects schools’ appreciation of their important responsibility to maintain a safe learning environment for all students. I am writing to remind you, however, that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights (OCR).

… by limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment. The statutes that OCR enforces include Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability.

School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees. School personnel who understand their legal obligations to address harassment under these laws are in the best position to prevent it from occurring and to respond appropriately when it does.

Although this letter focuses on the elementary and secondary school context, the legal principles also apply to postsecondary institutions covered by the laws and regulations enforced by OCR …

… The statutes that OCR enforces include Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability. School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.

Note:  A complaint of discrimination can be filed by anyone who believes that a school that receives Federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability, or age. The person or organization filing the complaint need not be a victim of the alleged discrimination, but may complain on behalf of another person or group. Information about how to file a complaint with OCR is at http://www2.ed.gov/about/offices/list/ocr/complaintintro.html or by contacting OCR’s Customer Service Team at 1‐800‐421‐3481.

The Healthy Workplace Bill is Anemic

The proposed Healthy Workplace Bill (HWB) is touted as model legislation to combat workplace bullying in the United States but is it as healthy as it should be for American workers?

No, says an international expert writing in a special issue of Comparative Labor Law & Policy Journal entitled, The Law of Workplace Bullying: An International Overview, Volume 32, Number 1, Fall 2010.

“It is of note that efforts to have legislation adopted in the Unites States seem to raise the bar far higher than would be acceptable in any of the other countries studied here,” says Professor Katherine Lippel, the editor of the issue and Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada,

The HWB was drafted by Professor David Yamada of Suffolk University, Boston, MA,  founder of the New Workplace Institute, and is supported by the Workplace Bullying Institute founded by Gary and Ruth Namie.

Ms. Lippel said the HWB contains restrictive requirements not found in other such laws around the world. Specifically, she cites its requirement that the Plaintiff show malicious intent to bully and provide evidence that he or she suffered tangible psychological or physical harm.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of malicious intent:

“The requirement of malicious intention is of particular concern, and is not a requirement in the other legislation studied in this issue … Most legislation does not require evidence of the intention of the perpetrator of harassment (see for instance the interpretation and application of the legislation in France and Québec, and the Code of practice in Spain), and while malicious intent may lead to an increased award in Germany, evidence of intent is not required in the application of remedies provided for either in contract or tort liability contexts.”

It should also be noted that proof of malice is not a requirement for “hostile workplace” claims under Title VII of the Civil Rights Act, which protects victims who are discriminated on the basis of race, sex, national original, etc.  They need prove malice only if they are seeking the additional remedy of punitive damages.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of tangible harm:

“Similarly, the proposed Healthy Worker Bill imposes an evidentiary requirement that has been critiqued as being “an over-high standard of severity,”…  requiring evidence of tangible harm to the plaintiff … It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill.”

It should also be noted here that proving tangible  psychological or physical harm is not required by federal discrimination laws for other victims of a hostile workplace environment.  In fact, the requirement was expressly rejected by the U.S. Supreme Court in a 1993 sexual harassment case.  In Harris v. Forklift Systems., the U. S. Supreme Court said the protection of federal law comes into play before the harassing conduct leads to a nervous breakdown.  (See Harris v. Forklift Sys., 510 U.S. 17 (1993))

The Supreme Court also said:  “Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive … there is no need for it also to be psychologically injurious.”

Furthermore, the requirement to prove psychological harm would be a burden for targets who don’t have health care coverage,  the funds to see a therapist or the cultural disposition to seek psychiatric care. According to the Office of Minority Health, U.S. Dept. of Health and Human Services, 19.5 percent of African-Americans in comparison to 10.4 percent of non-Hispanic whites were uninsured in 2007.

Overwhelming research shows that bullying causes  stress that may contribute to physical harm that only becomes apparent many years later – such as heart disease.  Shouldn’t this be taken into account?

Ms. Lippel prefaces her remarks with the admonition that, “The actual content of the legislation on workplace bullying, if there is to be legislation, requires reflection.”

There is one other striking problem with the HWB that is not discussed in the special issue.  The HWB places a seemingly arbitrary cap on damages for targets of bullying who did not experience an adverse employment action, such as demotion or dismissal. The cap on emotional distress damages is $25,000 and targets are prohibited from seeking punitive damages. This cap is so low that it is unlikely that the HWB would serve as a deterrent to employers.  And, in a worst case scenario, the family of target driven to suicide by bullying would be able recover barely enough to pay for a decent funeral – all because the target was not demoted or fired. In short, the only damages available to a target of workplace bullying in this situation would be compensatory, i.e. the payment of medical bills.

Namie and Yamada have expressed concern about burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But they fail to explain why this concern wouldn’t apply equally to any other lawsuit involving a hostile work claim, including sexual harassment or race discrimination lawsuits.  Why should targets of workplace bullying be singled out?

The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Unwelcome conduct becomes illegal when it is so severe and pervasive that it interferes with the target’s work performance or creates a work atmosphere that is offensive or abusive. (Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)).

The Journal is a publication of the University of Illinois College of Law and The International Society for Labor Law and Social Security. The special issue may be available for perusal at your local law library. It can be found online at Lexis/Nexis, Westlaw, and HeinOnline. It is available for purchase ($10) at the journal’s web site: http://www.law.uiuc.edu/publications/cll&pj/contact.html

– by Patricia Barnes

*** Note: This article was updated on 2/7/12

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Dealing with High Conflict People

Bill Eddy, on his informative blog, Mediate.com, which is geared toward professional mediators, says High Conflict People (HCP) often act as a result of a life-long mistaken assessment of danger.  He gives the following sage advice for dealing with HCP:

1) Reduce their Mistaken Assessment of Danger:  Try not to be emotionally threatening.  Make an effort to reduce those fears by the way you interact with the person.

  • With a Borderline HCP, try to maintain a moderate, even-tempered manner that’s not too close and not too rejecting (avoid abandonment).
  • With a Narcissistic HCP, try to avoid insults and instead find things you can respect about the person (avoid treating them as inferior).
  • With an Antisocial HCP, be cautious about believing their many stories of being victimized by others, but avoid trying to dominate them in verbal interactions.
  • With Histrionic HCPs, try to pay brief attention to their dramatic stories, and then gently focus on a task or a topic you can be interested in, and then end the conversation by explaining you have to leave (rather than seeming to belittle them).
  • With Paranoid HCPs, don’t try to convince them of your trustworthiness – just be matter-of-fact and focus on what the rules are and why you have to follow them (avoid seeming suspicious of the person and avoid focusing on their fears).

2) Set Limits on Behavior that’s Aggressively Defensive:

Of course, bad behavior needs to be stopped. But the most effective way to do this is to show empathy and concern for the person … AND explain the rules or reasons the specific behavior needs to be stopped (try not to make it personal) AND what the consequences are if it continues. You can express regret that you have to address this behavior, but at the same time explain how you want to help the person and how other behaviors will be more effective at getting them what they want.

The key here is that you want to help the person accomplish the goal (being respected, not being ignored, etc.) that was underlying the bad behavior. You want to help them address the underlying concern. For example, if an employee sent out a nasty email to others in the department, you discuss the consequence for doing that. But also discuss what the employee was trying to accomplish and a better way to do that. It may be that the employee felt disrespected and therefore reacted with disrespect for others. You can explain that a better way would be to simply point out available ways to be treated with respect that don’t involved treating others with disrespect.

3) Avoid Giving Negative Feedback:

It is automatic for us to respond with negative feedback to bad behavior. With the ordinary co-worker, neighbor, or family member, negative feedback may be helpful or at least neutral. However, with HCPs, negative feedback is taken extremely personally and feeds their Mistaken Assessment of Danger – which triggers their bad behavior in an effort to defend themselves against the “danger” – which is more about personality-based fears than it is about anything in the present. Of course, you can’t point this out to the person or you will get even more bad behavior in their defensive response. Instead, focus on reducing emotional threats and on matter-of-factly setting limits on the behavior. Regardless of how severe the consequences may be for the “bad” behavior, communicate that you want to help the person. If you can demonstrate a desire to help through your own attitude and behavior, it often makes a huge, positive difference to an HCP.

(November 2010)

Manitoba, Canada, Protects Against Workplace Harassment

Taken from 10/21/10 article in  Winnipeg Free Press, Manitoba, Canada:

The province of Manitoba, Canada, has joined several other Canadian provinces to adopt  new measures to protect against psychological harassment in the workplace, labour and immigration minister Jennifer Howard announced.

Changes to the Workplace, Safety and Health Regulation will add new requirements to protect workers from all forms of harassment, including intimidation, bullying and humiliation.

“Manitoba now joins other provinces such as Ontario, Saskatchewan and Quebec in requiring employers to provide protection from such harassment,” Howard said in a provincial government release. “This builds on other measures that protect workers from harassment based on age, race or gender and ensure that workplaces are respectful and safe for everyone.”

Employers will be required to put in place measures to prevent such harassment and address it if it occurs. The province will help develop and implement policies and educate workers and employers about their responsibilities to ensure a respectful and healthy workplace.

A press release detailing Howard’s announcement notes that normal and reasonable management actions, including discipline, are not defined as psychological harassment.

Howard also announced technical changes to workplace safety regulations in response to a recommendation made following the inquest into the 2000 death of a worker in a furnace explosion at Hudson Bay Mining and Smelting in Flin Flon.

Amendments will provide clear direction to employers and workers regarding the steps necessary to eliminate workplace hazards, strengthen requirements for use of personal safety equipment and reflect updated safety standards.