“workplace harassment” – When The Abuser Goes To Work…

Puerto Rico Adopts “Historic” Law Prohibiting Workplace Harassment

Puerto Rico has adopted an expansive new law that prohibits workplace harassment.

The Act to Prohibit and Prevent Workplace Harassment in Puerto Rico was signed into law on August 7 by Gov. Wanda Vázquez Garced, who called the legislation an “historic” labor protection.

The law defines workplace harassment as actions and behavior that are “malicious, unwanted, repetitive and abusive; arbitrary, unreasonable and/or capricious … [performed] repeatedly by the employer, his agents, supervisors or employees, oblivious to the legitimate interests of the employer’s company.”

The prohibited actions must be “unwelcome” and threaten the employee’s dignity and “protected constitutional rights.” Continue reading “Puerto Rico Adopts “Historic” Law Prohibiting Workplace Harassment”

OSHA Suit Linked to Bullying

The U.S. Occupational Health and Safety Administration (OSHA) has initiated what appears to be one of its first – if not its first – lawsuit involving workplace bullying.

The U.S. Department of Labor (DOL) filed the lawsuit earlier this month against a Fort Lauderdale business owner who fired a worker after the worker complained to OSHA that the worker was subjected to discrimination because he complained about hostile workplace conditions at the company.

According to an OSHA press release, Duane Thomas Marine Construction LLC and its owner, Duane Thomas, are charged with terminating the worker in violation of Section 11(c) of the Occupational Safety and Health Act (OSH Act). Section 11 (c) prohibits discriminating against any employee because the employee has filed a complaint related to the OSH Act or has exercised a right afforded by the Act. The employee was not identified by OSHA.

The case involves what appears to be essentially a campaign of workplace bullying.

The OSHA press release states the employee complained that Thomas on numerous occasions between Dec. 9, 2009 and Feb. 25, 2011 “committed workplace violence and created hostile working conditions. He allegedly behaved abusively, made inappropriate sexual comments and advances, yelled, screamed and made physically threatening gestures, in addition to withholding the employee’s paycheck.” The employee worked directly for Thomas at the company’s custom marine dock installation services site on Marco Island.

The case is significant because the General Duty Clause of the OSH Act requires employers to provide safe and healthful workplaces for their employees. However, OSHA has not shown any leadership with respect to workplace bullying, even though overwhelming research shows that workplace bullying causes potentially serious short and long-term health consequences. OSHA typically enforces safety standards that relate to traditional industrial hazards, such as high noise levels, chemical exposure, electrical or fall hazards, etc.

Shortly after Thomas was notified of the OSHA complaint, OSHA states that Thomas had the company’s computer passwords changed to deny the employee remote access to files and then terminated the employee.

The lawsuit seeks back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement. Additionally, it seeks to have the employee’s personnel records expunged with respect to the matters at issue in the case and to bar the employer from committing future violations of the OSH Act.

Teresa Harrison, OSHA’s acting regional administrator in Atlanta, said, “Employees have the right to raise workplace violence concerns without fear of retaliation.”

The lawsuit, Solis v. Duane Thomas Marine Construction LLC and Duane Thomas, was filed in the U.S. District Court for the Middle District of Florida, Fort Myers Division.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor requesting an investigation by OSHA’s Whistleblower Protection Program. The program enforces the whistleblower provisions of more than 20 statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

When Workplace Bullying is Illegal

What is the difference between workplace bullying and illegal harassment?

The major difference is that no law at present prohibits workplace bullying – despite the fact that workplace bullying can severely impact an employee’s emotional and physical well-being. And most other industrialized countries have enacted laws or regulations that address workplace bullying.

However, bullying can become illegal when it creates a hostile or abusive work environment in violation of federal or state civil rights laws, including Title VII of the Civil Rights Act of 1964.

Generally, two factors must exist:

The harassing conduct must create a “hostile work environment.”
The harassing conduct must be directed toward a characteristic that is protected under federal and state civil rights laws. Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Therefore, workplace bullying may be illegal if it creates a hostile or abusive work environment and it is directed toward an individual who has protection under federal and state civil rights laws on the basis of race, sex, religion, national origin, etc.

What is a hostile work environment? The U.S. Supreme Court says a hostile work environment is a workplace that is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of a victim’s employment and to create an abusive working environment. Harris v. Forklift Sys., 510 U.S. 17 (U.S. 1993). The Court has repeatedly said that Title VII does not prohibit simple teasing or a merely offensive utterance.

NOTE: A target of illegal harassment does not have to suffer a nervous breakdown to gain the protection of Title VII. The U.S. Supreme Court says that as long as the environment would reasonably be perceived and was perceived as hostile or abusive, there is no need for it also to be psychologically injurious. The court says psychological harm could be taken into account but is not required by the statute.

To sum up, there may be no substantive difference between the conduct that constitutes serious workplace bullying and the conduct that is acknowledged under the law to create an illegal hostile or abusive work environment. The harassing conduct can be identical, with the exact same devestating result.

The significant difference between serious workplace bullying and illegal harassment is a legal distinction pertaining to the characteristics of the target of the conduct.

Nevada State Sen. Richard Segerblom has proposed making Title VII “status blind” so that the law provides a remedy for all targets of a hostile or abusive workplace, whether or not they fall within a category that is now protected under the law.

As Shakespeare once observed: “If you prick us, do we not bleed.”

Individuals who are targets of workplace bullying may have other legal recourse, in addition to federal and state civil rights laws. All targets of workplace bullying are encouraged to consult an attorney who specializes in employment law for employees (not companies) to discuss the specific facts of their case and any potential legal remedies within their jurisdiction.

OK for Dentist to Fire Object of Desire

In a small office, an employee often has no where to go when she is mistreated by an employer.

The perils of this predicament are amply demonstrated in a recent ruling by the Supreme Court of Iowa.

The all-male Court ruled that a dentist did not violate sex discrimination laws when he fired his long-time dental assistant because he (and his wife) was afraid he would have an affair with her.

The Court upheld a lower court’s grant of summary judgment in the case of Nelson v. Knight, No. 11–1857 (Dec. 21, 2012). This means the Court concluded there was absolutely no way a jury could decide against Dentist James H. Knight and hold in favor of his assistant, Melissa Nelson. Therefore, the case was dismissed before trial.

Knight said he fired Nelson, who had worked for him for ten years, after his wife insisted that Nelson had to go. He gave Nelson one month’s severance.

Knight admits that on several occasions he asked Nelson to put on a lab coat because her clothing was too tight, revealing and “distracting.” Nelson denied that her clothing was tight or in any way inappropriate and said she complained to Knight at one point that his criticism was unfair.

Nelson also recalls that Knight once texted her to ask how often she experienced an orgasm. Nelson did not answer the text. The Court found it significant that Nelson did not remember ever telling Knight not to text her or telling him that she was offended.

When Knight’s wife found out that her husband and Nelson had been texting each other, she confronted her husband and demanded that he terminate Nelson’s employment. The Court finds it significant that Knight and his wife consulted with the senior pastor of their church, who agreed with the decision.

After the firing, Knight told Nelson’s husband that nothing was going on but that he feared he would try to have an affair with her down the road if he did not fire her.

Nelson charged that Knight had discriminated against her on the basis of sex in violation of the Iowa Civil Rights Act. She contended that she would not have been fired if she were male. Nelson did not raise the issue of sexual harassment.

The Court states in its decision that the question to be decided was “whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.” In this case, the Court held that Knight’s decision was driven by individual feelings and emotions regarding a specific person. The Court concluded Knight’s decision was not gender-based or based on factors that might be a proxy for gender.

The Court states that an employer does not violate sex discrimination laws by ” treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

The Court did concede that it might be possible to infer that gender was an issue if an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues.

So if Knight repeatedly fires future assistants because he thinks he might want to have an affair with them, or if Knights’ wife demands that he fire future assistants because she thinks he might want to have an affair with them, presumably a Court could find discrimination on the basis of sex.

Meanwhile, Melissa Nelson is unemployed, with one month’s severance.

This may not come as a surprise to some readers but, according to the Court’s web site, there are no women justices on the Iowa Supreme Court. The seven justices are Chief Justice Mark S. Cady, David S. Wiggins, Daryl L. Hecht, Brent R. Appel, Thomas D. Waterman, Edward Mansfield and Bruce Zager. Justice Mansfield wrote the opinion.

OSHA: A Sleeping Giant Awakes?

Many countries around the world consider workplace violence to be an important worker health and safety issue but the U.S. Occupational Safety and Health Administration has been oddly silent on this issue..

That’s why it is significant that OSHA recently cited a Dallas company for safety violations following a robbery that resulted in the horrific death of a store clerk at a Whip In convenience store in Garland, Texas.

The OSHA citations carry proposed fines that are underwhelming – $19,600. However, the action sends a message to convenience store owners that they would be well advised to pay attention to the issues of workplace violence.

In May of 2012, the store clerk, Nancy Harris, 76, died from second- and third-degree burns after she was set on fire during the robbery. Police said Matthew Lee Johnson, 36, arrived at the Whip-In shortly after the store opened at 7 a.m. on a Sunday. Officers said he carried in a bottle of flammable liquid and used it to douse Harris and then set her on fire — after clearing out the cash register.

OSHA cited TMT Inc., owner of the Whip In chain, for four serious safety violations. OSHA contends that if the employer had implemented appropriate control measures and provided training to ensure awareness of potential violence, it is possible that Ms. Harris’ death could have been avoided.

OSHA could not cite any specific violations of their safety standards, so each store was cited with violating OSHA’s “general duty clause” for failing to provide a workplace free from recognized hazards likely to cause serious injury or death.

While the fine is a pittance, it is not inconceivable that the TMT will face a civil lawsuit as a result of Ms. Harris’ death and the OSHA action could be a significant factor in such a lawsuit.

OSHA’s Dallas Area Office opened an investigation at the Garland store in May after the robbery and later investigated the company’s three other stores in Dallas and Mesquite. OSHA found that workers at those locations were exposed to the same or similar workplace violence hazards. TMTemploys more than 60 employees across the Dallas-Fort Worth area.

According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), of the 4,547 fatal workplace injuries that occurred in the United States in 2010, 506 were workplace homicides.

OSHA defines workplace violence as any act or threat of physical violence, harassment, intimidation or other threatening and disruptive behavior that occurs at a work site. According to OSHA, workplace violence includes behavior ranging from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

More information on workplace violence is available at OSHA’s website at www.osha.gov/SLTC/workplaceviolence.