Workplace Anti-Bullying Laws Inevitable …

Here are excerpts from a Jan. 21, 2011 article in The New York Law Journal by two attorneys at a major law firm that represents management and employers, warning that it is just a question of time before a state passes a law providing a right of civil redress to workers who are victims of workplace bullying. Note: this article presents a somewhat alarmist view of what the authors concede is the inevitable passage of legislation to combat workplace abuse. The authors trivialize the current problem, focusing on co-worker spats and hypersensitive employees while ignoring the devastating impact of workplace bullying on targets, their families and the employers.  The authors’ interpretation of case law is unduly negative and slanted.  And the authors fail to present an accurate picture of the current costs of  workplace abuse  on employers and society– PGB

Office Bully Takes One on the Nose: Developing Law on Workplace Abuse

by Jason Habinsky and Christine M. Fitzgerald

For years the law has been stacked against an employee claiming that he or she was abused or bullied by a co-worker. Generally, the law offers no protection to such a victim as long as the alleged bully can show that his or her actions were not motivated by the victim’s status as a member of a protected class. Currently, there are no federal, state or local laws providing a cause of action for an individual subject to a non-discriminatory abusive work environment. However, with bullying becoming front-page news across the nation, it is just a matter of time before the law adapts. Since 2003, 17 states have considered legislation designed to protect employees from workplace bullying. Indeed, this year New York came very close to a floor vote on a bill that would provide a cause of action to an employee subjected to an abusive work environment.

Proponents of anti-bullying legislation contend that it is necessary given the prevalence of abusive conduct in the workplace. The proposed New York legislation noted that “between sixteen and twenty-one percent of employees directly experience health endangering workplace bullying, abuse and harassment” and that “[s]uch behavior is four times more prevalent than sexual harassment.”

Currently, employers have little to worry about with respect to facing substantial liability as a result of workplace bullying. The existing legal framework provides very limited recourse to an employee who is bullied at work. While some types of harassment are outlawed under Title VII of the Civil Rights Act of 1964, Title VII’s reach is narrow. Title VII prohibits employment discrimination based on an individual’s race, sex, color, religion, or national origin.

Likewise, the extreme behavior that gives rise to the tort of intentional infliction of emotional distress does not encompass most workplace bullying.

Employees also have been unsuccessful in trying to fit their workplace bullying claims into a cause of action for constructive discharge.

Therefore, it appears that we may be on the cusp of a new era of legislation and legal precedent targeted at preventing and punishing workplace bullying. Indeed, it seems inevitable that some form of the HWB (Healthy Workplace Bill) will become law, whether in New York or elsewhere, and that once the first state adopts an anti-bullying statute others will shortly follow.

Walmart Shooter Felt Unfairly Treated

His supervisors said John Gillane was well liked and had no work issues.

However. John Gillane, 45, a nine-year veteran Walmart employee felt he was not fairly treated.

After purchasing ammunition at the Reno, NV, Walmart  store , Gillane shot and wounded three supervisors on Oct. 29, 2010.

Initial news reports indicated that employment conflict played no role in the incident. However,  the  Reno Gazete Journal newspaper has reported that court documents show that Gillane told police he  felt he was not treated fairly during his nine years of employment at the store. Gillane also was upset about a recent work evaluation by one of the three supervisors he shot, Eric Hill, and because his hours were being slashed.

Gillane  pleaded not guilty on Jan. 19, 2011 to attempted murder, battery with a deadly weapon causing substantial bodily harm and assault with a deadly weapon.

Court records show that Gillane told detectives he felt like he was “taking on Goliath” when he fired gunshots Oct. 29, 2010 at three of his supervisors at the Kietzke Lane store. Wounded in the incident were Richard Burns, Rick Sanders and Hill.

Preliminary hearing testimony revealed Gillane had many other problems, including two former wives leaving him for female lovers, a recent eviction, the fact that he didn’t see his young daughter very often and increased health insurance rates. Police were called to Gillane’s motel room two weeks prior to the shooting because Gillane was armed and suicidal.

Gillane told police that he was trying to intimidate the managers when he confronted them with a large, loaded handgun. Two managers testified they were shot when trying to flee from Gillane, while the third was shot while standing in the hallway. Gillane told police he planned to confront the managers during their morning meetings, so they could call someone higher in the Wal-Mart Stores Inc. corporation to listen to his complaints.

The victims testified Gillane was well-liked and had no work issues, and they were unaware he disliked them.

There is a long history in the United States of disgruntled employees taking up arms and shooting supervisors and co-workers.  A series of shootings by postal employees in the 1980s led to the term, “Going Postal.”

NPR v. Juan Williams

Does anyone know of a so-called independent review by a law firm that found the employer was completely un-justified in its actions (and thus potentially liable for serious monetary damages). I suspect that would be the last time said  firm was hired to do an independent investigation.  Frankly, I’m no fan of Juan Williams but  come on NPR … Adopt clear policies and processes for NPR’ employees and apply them uniformly.  PGB

NPR Senior Analyst Juan Williams, a ten-year veteran of public radio, received a telephone call last August from NPR Senior Vice President for News Ellen Weiss saying, in effect, “You’re Fired.”

True, Mr. Williams had made some incredibly stupid comments on Fox News about getting nervous on airplanes when he sees individuals dressed in Muslim garb. But is he the only NPR pundit who has made inane comments in pursuit of political punditry? No. And  don’t employees have a right to due process and to be treated civilly and with basic human dignity in the termination process?

NPR issued a report on the firing on Jan. 6, 2011 that said (based upon a supposedly independent investigation by a DC law firm paid by NCR) that Williams’ firing was warranted because he worked under a contract that gave both sides the right to terminate on 30 days notice for any reason. However, the report also states that NPR Chief Executive Officer Vivian Schiller wouldn’t be getting her bonus this year because of concern over the way Williams’ termination was handled and that Ms. Weiss was … er … resigning.

According to the report:

“— Williams’ contract was terminated in accordance with its terms. The contract gave both parties the right to terminate on 30 days’ notice for any reason. The facts gathered during the review revealed that the termination was not the result of special interest group or donor pressure. However, because of concerns regarding the speed and handling of the termination process, the Board additionally recommended that certain actions be taken with regard to management involved in Williams’ contract termination.

“In light of the review and feedback provided to them, the Board has adopted recommendations and remedial measures designed to address issues that surfaced with the review. The recommendations and remedial measures range from new internal procedures concerning personnel and on air-talent decisions to taking appropriate disciplinary action with respect to certain management employees involved in the termination… ”

NPR Ombudsman David Folkenflik later stated the law firm that NPR hired to conduct the review: “found that the termination of Williams’ contract was entirely legal. But the board said the report called for a full review of the company’s policies on ethics and outside appearances and for them to be applied consistently to all personnel.”

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.

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