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The Providence Journal, October 28, 2003
Lombardi seeks anti-bully ordinance

The City Council president wants a measure to combat people who use foul language, chronically yell and berate others, or take other hostile actions in the workplace.

BY GREGORY SMITH
Journal Staff Writer

PROVIDENCE -- Everyone has heard of the schoolyard bully.

There has been a lot of government action in recent years to discourage bullying and more serious forms of violence in schools.

But what about bosses and coworkers who are bullies in a workplace?

There are people who chronically yell and berate others, sometimes using foul language, or take other hostile actions.

City Council President John J. Lombardi thinks they are a problem, too. And he has proposed that the city enact an ordinance that would prohibit behavior like that in all public and private workplaces.

Wherever it happens, he said yesterday, it saps employee efficiency and productivity.

A nonprofit organization called the Workplace Bullying and Trauma Institute asserts that the problem of bullying, or general harassment, in the workplace is more prevalent than the widely understood and illegal kinds such as sexual harassment and racial discrimination.

It cites a research study done in Michigan which found that one in six workers has directly experienced destructive bullying in the past year. And it says that half of the workplace bullies are females.

The institute defines bullying as the "repeated hurtful interpersonal mistreatment of a person by a cruel perpetrator" and likens it to domestic violence.

Mistreatment can vary from acts of commission, such as hostile verbal and nonverbal communication and interference, to acts of omission, such as the withholding of resources to assure the failure of a subordinate or coworker.

Lombardi, a lawyer, said he has become familiar in his law practice with complaints of serious misbehavior that fall between the cracks of existing laws that prohibit discrimination based on race, ethnicity, gender, national origin, religion, age, sexual orientation, or certain other factors.

And it is those between-the-cracks kinds of situations that he wants to head off.

Lombardi introduced his proposed ordinance to the council this month and it was routinely referred to the Ordinance Committee for consideration.

"We have the potential of becoming a nationwide model, creating a safe and non-hostile work environment," Lombardi told his council colleagues.

Although he has assembled research about workplace bullying and similar state legislation that has been proposed in California, Lombardi has not prepared preliminary language for a Providence ordinance. His proposal exists only as an ordinance title -- sometimes called a skeleton bill -- and he is counting on the city Law Department to write the ordinance.

He said no particular incident inside or outside city government prompted his proposal, but that he wants the council to remain "proactive," as he said it has been, in addressing issues.

In addition to enacting an ordinance, the council president said he would like to see social-service agencies and tutors come to municipal offices and work sites and educate employees about the need to be respectful to others on the job.

A proposed state law in California -- Lombardi cites it as an example of what Providence can do -- declares that California's social and economic well-being depends on healthy and productive employees. It seeks to prohibit "abusive conduct" and "abusive work environments."

It states that workers' compensation laws or other laws are inadequate to deter abusers or to provide redress to victims.

The so-called "Healthy Workplace" bill says, in part, that abusive conduct is the conduct of an employer or employee in the workplace "that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests."

Examples would include repeated infliction of verbal abuse, such as the use of insults and epithets; threatening and humiliating behavior; and the "gratuitous sabotage" of the work performance of another person.

"An abusive work environment," the legislation says, "is a workplace where an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to the employee."

If an "unlawful employment practice" occurred in violation of the proposed law, a harmed employee would be able to sue and potentially to collect a payment of up to $25,000 for emotional distress. The legislation also carries one or more other potential penalties.

In Providence, the council president said he would like to see the Law Department work with municipal labor unions, the Personnel Department and others to craft the best possible law.

"It needs to meet constitutional muster. That's why everyone has to be around the table," he said.

He is not sure if the city Human Relations Commission or some other part of municipal government would be responsible for enforcing an anti-bullying ordinance.

"We know it fits somewhere but we just don't know where it fits exactly," he said.

The court also ruled that, “regardless of whether Shellenberger had established a causal connection, Summit had put forth a legitimate, non-discriminatory reason for firing her: that she was insubordinate.” 

The Third Circuit, however, reversed. The appellate court found that a plaintiff need not establish he/ she was a qualified individual with a disability under the ADA in order to succeed on a retaliation theory. In reversing the district court’s decision on the retaliation claim, the only issue on appeal, the Third Circuit ruled that there was sufficient evidence for a jury to conclude that the employer fired the plaintiff in retaliation for actions protected by the ADA. 

In so ruling, the Court stressed that irrespective of whether an individual has established that he/ she has a disability, the ADA protects any employee who files a good faith claim. Therefore, the Third Circuit concluded, “in determining whether a plaintiff can proceed on a retaliation claim, a person’s status as a ‘qualified individual with a disability’ under the ADA is not relevant in assessing the person’s claim for retaliation under the ADA.” 

This case reinforces that once a request for accommodation is made, no matter how frivolous, any potential adverse actions taken against the employee must be scrutinized to ensure that the potential adverse actions are not retaliatory.

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