Hostile Work Environment

[mlm828]

inuvik said:

matilda said:

Got all the more intriguing as I'd have to say that the carry on by the Russo character would be a clear case of workplace bullying here in Australia, and in legal terms, disability-based harassment.

I can't believe that has never even crossed my mind! Of course! Jim was harassed by Russo. I guess the reason he never brought it up to the Human Rights commission (or the equivalent in the US) is he didn't want to make a fuss. It would certainly set him apart and put even more focus on his disability, which he wouldn't have wanted.

But I'm so glad you mentioned it, it brings up a whole other area of speculation.

This is such an interesting discussion, I thought it deserved its own thread.

I agree it would have been totally out of character for Jim to complain to the Human Rights Commission (or its equivalent). I think he knew that if he wanted to earn his place in the squad, he had to work things out himself. But this raises some other interesting questions.

In sexual harassment cases in the U.S., there is a concept of the "hostile work environment." I don't know if this idea also applies under the Americans with Disabilities Act, but it could.

At the beginning, everyone is hostile to Jim, in varying degrees. But Karen and Fisk seem to come around, and maybe Tom, too. It's hard to tell whether he's just keeping his thoughts to himself. But is Marty hostile toward Jim because he's blind, or because he's Jim, or both?

On his second day back at work, Jim basically shows up the whole squad by collaring the "Tongue Collector" killer they've been pursuing for weeks if not months. Then, in "Four Feet Under," Marty objects to Jim's questioning Kent Newell, saying Jim isn't going to "bat cleanup" on any of "our" cases. After Jim gets Newell to recant his statement to Tom and Marty, Karen suggests Jim should ease up on them.

So -- is Marty harassing Jim because he's blind, or because the two men would inevitably clash?

[Deleted]

mlm828 said:

inuvik said:

In sexual harassment cases in the U.S., there is a concept of the "hostile work environment." I don't know if this idea also applies under the Americans with Disabilities Act, but it could.

In my work with the Labor Law in the State of New York, it was my understanding that it did not, however, how often do we know laws to change?

[mlm828]

divinemrse said:

mlm828 said:

In sexual harassment cases in the U.S., there is a concept of the "hostile work environment." I don't know if this idea also applies under the Americans with Disabilities Act, but it could.

In my work with the Labor Law in the State of New York, it was my understanding that it did not, however, how often do we know laws to change?

Thanks for the info, Barb! All of my work in the field of employment law was before the ADA.

But this brings another question to mind. I wonder if someone from the Department talked to Fisk and the squad about what was required under the ADA -- "reasonable accommodation" and all that -- after it was decided Jim was going to be assigned there. I could see something like that happening in a large bureaucratic organization like the NYPD. If it did, it could have made things worse for Jim, by giving the squad the impression he was asking for "special treatment."

[matilda]

What a cool discussion, thanks guys.

Here in Land Down Under, employment law and what we term the human rights or anti-discrimination jurisdictions quite separate and distinct. Bit of a problem. From what you are all saying seems better capacity to deal with workplace discrimination/bullying in employment/industrial jurisdictions in U.S.?

'Bullying' is really hotting up here - now an occupational health and safety issue in all States. 'Hostile work environment' certainly applies.

I recall the Russo character doing some things that were really overt in terms of bullying acts (a single act can be interpreted as bullying here now) - I'll go back and have a look, I'm fascinated now in terms of my own, original interpretation.

So what you've raised about the Jim character requires further examination as well at this end - on first thought I reckon not bringing attention to it, sorting it yourself probably absolutley right, like most people eh?

So geez I'm glad I joined this Board - lovely diversion from day job!

Cheers

Matilda

[Duchess of Lashes]

It's been a while since I have worked in the world of HR, and certainly never from the legal end of things, rather from the HR end of things, but if I remember the facts correctly, the ADA does not specifically address the matter of workplace harrassment anywhere within its text. Rather, it marries so closely to the Civil Rights Act, that it has been used successfully in the defense of workplace harrassement. So, I did some research:

"The ADA provides that no employers "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to terms, conditions, and privileges of employment." Although the statute does not specifically reference hostile work environment, the court found, the statute's text must be interpreted according to how it was understood at the time of its passing.

The court explained that the phrase "terms, conditions, and privileges of employment," as used in the ADA, was borrowed directly from Title VTI of the Civil Rights Act of 1964, 42 U.S.C. § 1983. When the ADA was passed in 1991, the court explained, Congress intended this phrase to prohibit a broad range of employment practices, including workplace harassment. Thus, hostile work environment claims are actionable under the ADA.

It would seem that Russo was guilty of creating a hostile work environment on so many levels. Karen was also the brunt of some of Marty's more colorful comments! This guy was a walking textbook example of an employee who should have been hauled in to his HR office for some not so gentle reminders!

[Deleted]

longlashes said:

It's been a while since I have worked in the world of HR, and certainly never from the legal end of things, rather from the HR end of things, but if I remember the facts correctly, the ADA does not specifically address the matter of workplace harrassment anywhere within its text. Rather, it marries so closely to the Civil Rights Act, that it has been used successfully in the defense of workplace harrassement. So, I did some research:

"The ADA provides that no employers "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to terms, conditions, and privileges of employment." Although the statute does not specifically reference hostile work environment, the court found, the statute's text must be interpreted according to how it was understood at the time of its passing.

The court explained that the phrase "terms, conditions, and privileges of employment," as used in the ADA, was borrowed directly from Title VTI of the Civil Rights Act of 1964, 42 U.S.C. § 1983. When the ADA was passed in 1991, the court explained, Congress intended this phrase to prohibit a broad range of employment practices, including workplace harassment. Thus, hostile work environment claims are actionable under the ADA.

It would seem that Russo was guilty of creating a hostile work environment on so many levels. Karen was also the brunt of some of Marty's more colorful comments! This guy was a walking textbook example of an employee who should have been hauled in to his HR office for some not so gentle reminders!

Who gets a karma, huh? WHO? As to your last paragraph: hmmm....."bottom bitch" comes to mind, as well as, "tiny little woman." Though, in that context, he was using it to get the truth from Lyman but, nonetheless.......the law is quite clear. I know, for example, some of the protected issues (namely, you cannot be fired for) are: marital status, sexual orientation, pregnancy, race, religion - there are more, but it's been some time. Now, the Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. This, too, does not specifiy hostile work environment, however, I cite SEC. 623 [Section 4] below:

"(a) It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter. ..."

While this law was specifically designed to protect those of us who are 40 and over, I must say, in my experience working defense employment law litigation, this is one of the most difficult burdens a complainant would have to prove, bar none.

That said, I move for a brief recess.

[mlm828]

I can't cite any cases (and I'm not going to look for them -- too much like work ), but I wouldn't be surprised to learn that courts have interpreted "otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age" as prohibiting workplace harassment based on an employee's age, just as the courts have interpreted similar language in Title VII in this fashion.

That said, I didn't really intend to provoke a legal debate here. I have always thought that Marty's role, especially in the first six episodes, was to talk about the "elephant in the room" -- the fact that a blind man was working as a detective and carrying a gun. I think his character was written this way precisely because the creators of Blind Justice knew the premise of the show would be questioned, and they chose to address the issue, mostly through Marty, instead of ignoring it. That Marty was often over the top or inappropriate in how he expressed his doubts added to the drama and gave us some very memorable moments. Having Jim deal with Marty in his own way was much better, in my opinion, than some boring legal resolution, which I think we agree he wouldn't have done anyway.

I think Jim knew exactly what he was facing when he went back on the job, and he probably was grateful not to have been assigned to a whole squad of Marty Russos.

To go back to one of my original questions, how much of Marty's harassment or bullying or whatever you want to call it is because Jim is blind, and how much is because Jim is Jim?

[matilda]

Hooley dooley (yes, she's talking Aussie) you people are interesting and clever.

You are all obviously much more familiar with the eps than I am, so I'll need to go back and have a good look. Suffice to say my intital observations are these:

1. Good on you Matilda you have encountered yet another bunch of employment lawyers/lawyers.

2. The development of the law in comparative terms is as always so very interesting ... looking at dates and development of wording in Australian human rights law would seem to mirror developments elsewhere.

3. Lovin you, mlm 28 for your practical rather than "some boring legal resolution" position. In basic terms, this would also be mine.

Anyone mind if I have a good examination of those episodes before I get back into this (and various Acts as detailed above)?

Position Matilda most unspohisticated by comparison with those more familiar with plotlines etc.

And I seem to have found myself a new hobby that will indeed be a nice diversion. ;D

Cheers!

[Deleted]

Surely, why not? I also don't think this was turning into a legal debate; rather, it's really nice to get into some meaty conversation every now and then. Our experiences are vast and getting into other discussions is quite stimulating, IMHO.

[matilda]

Ok the challenge for Matilda is on. Get off Board and watch episodes so she can develop position Matilda.

In terms of the question around bullying/harassment and how much of the behaviour is personality based .... mmm, interesting question would also be how much of the behaviour is around the culture of the specific industry and what is considered normal/acceptable and what's not?

And in terms of the "bottom bitch" thing, can't remember where that is (again get off Board Matilda and watch it), but how gendered is that behaviour in terms of the culture of the specific industry?

Don't get me wrong, have no problem with male gender and most of the manifestations of it (in fact I am surrounded by it in my domestic space), but with the development of 'bullying' overlapping with harassment here in Oz, gunna be fun to watch that one develop ...

I'm also fascinated by "terms, conditions and privileges" of employment. We don't have "privileges" as a term inherent in the employment contract here so you can be sure that I'll be looking for an excuse to do some comaparative looking over the next week or so and how that term developed.

Thanks all, you are giving me lots to think about while I re-watch.

Cheers!

[janna]

mlm828 said:

That said, I didn't really intend to provoke a legal debate here. I have always thought that Marty's role, especially in the first six episodes, was to talk about the "elephant in the room" -- the fact that a blind man was working as a detective and carrying a gun. I think his character was written this way precisely because the creators of Blind Justice knew the premise of the show would be questioned, and they chose to address the issue, mostly through Marty, instead of ignoring it. That Marty was often over the top or inappropriate in how he expressed his doubts added to the drama and gave us some very memorable moments. Having Jim deal with Marty in his own way was much better, in my opinion, than some boring legal resolution, which I think we agree he wouldn't have done anyway.

I agree

I think Jim knew exactly what he was facing when he went back on the job, and he probably was grateful not to have been assigned to a whole squad of Marty Russos.

Yes, yes.

To go back to one of my original questions, how much of Marty's harassment or bullying or whatever you want to call it is because Jim is blind, and how much is because Jim is Jim?

Do you think about what would Jim had done in a same situation but in the opposite side (I mean he is the sighted one, another is the blind). Exactly the same? Or at least not as hardly but do the similar? They are not as different. That's why the big confrontation (in my point of view). So the answer: the bullying is because both.

Janna

[Deleted]

janna said:

mlm828 said:

That said, I didn't really intend to provoke a legal debate here. I have always thought that Marty's role, especially in the first six episodes, was to talk about the "elephant in the room" -- the fact that a blind man was working as a detective and carrying a gun. I think his character was written this way precisely because the creators of Blind Justice knew the premise of the show would be questioned, and they chose to address the issue, mostly through Marty, instead of ignoring it. That Marty was often over the top or inappropriate in how he expressed his doubts added to the drama and gave us some very memorable moments. Having Jim deal with Marty in his own way was much better, in my opinion, than some boring legal resolution, which I think we agree he wouldn't have done anyway.

I agree

I think Jim knew exactly what he was facing when he went back on the job, and he probably was grateful not to have been assigned to a whole squad of Marty Russos.

Yes, yes.

To go back to one of my original questions, how much of Marty's harassment or bullying or whatever you want to call it is because Jim is blind, and how much is because Jim is Jim?

Do you think about what would Jim had done in a same situation but in the opposite side (I mean he is the sighted one, another is the blind). Exactly the same? Or at least not as hardly but do the similar? They are not as different. That's why the big confrontation (in my point of view). So the answer: the bullying is because both.

Janna

I think we know exactly how Jim would feel, as he clearly tells Karen at the end of the pilot that he would never have been paired up with a blind detective.

[mlm828]

divinemrse said:

janna said:

Do you think about what would Jim had done in a same situation but in the opposite side (I mean he is the sighted one, another is the blind). Exactly the same? Or at least not as hardly but do the similar? They are not as different. That's why the big confrontation (in my point of view). So the answer: the bullying is because both.
Janna

I think we know exactly how Jim would feel, as he clearly tells Karen at the end of the pilot that he would never have been paired up with a blind detective.

I agree. Jim specifically tells Karen that if his boss had tried to partner him up, a year ago, with a guy who couldn't see, he would not have let that happen. But I wonder. Just what would Sighted Jim have done in that situation? After all, a police force is a quasi-military type of organization. Would Sighted Jim have disobeyed a direct order to work with a blind guy? Maybe he would have transferred rather than work with him. Would he have resorted to the same verbal harassment and passive resistance (leaving the furniture out of place) that Marty did? I suspect the Jim of a year before might have resisted more subtly, by undermining the blind guy in various ways, without actually doing something that could result in disciplinary action.

[inuvik]

mlm828 said:

Would he have resorted to the same verbal harassment and passive resistance (leaving the furniture out of place) that Marty did?

This is what I was thinking of when I first made the comment. The deliberate harassment of Marty to Jim should not be tolerated. In Canada, it would be considered discrimination based on disability and would not be tolerated. You could launch a human rights complaint. It's deliberate sabotage, taking advantage of his disability. And Jim could do his job just fine with the minimum of accommodation, not leaving furniture out. He does not deserve the verbal harassment.

[carl1951]

www.law.ucla.edu/volokh/harassg.htm

I. POLITICAL, ARTISTIC, RELIGIOUS, AND SOCIALLY THEMED SPEECH QUALIFIES

The first place to look for an answer, of course, is the definition of harassment. Speech can be punished as workplace harassment if it's


"severe or pervasive" enough to

create a "hostile or abusive work environment"

based on race, religion, sex, national origin, age, disability, veteran status, or, in some jurisdictions, sexual orientation, political affiliation, citizenship status, marital status, or personal appearance,

for the plaintiff and for a reasonable person. 4
Note what the definition does not require. It does not require that the speech consist of obscenity or fighting words or threats or other constitutionally unprotected statements. It does not require that the speech be profanity or pornography, which some have considered "low value." 5 Under the definition, it is eminently possible for political, religious, or social commentary, or "legitimate" art, to be punished. 6
****************************************************

"Hostile" doesn't even begin to describe the flat-out hatred between Dunbar and Russo. I still think that weasel Russo has an inferiority problem when he's around Dunbar.

It was working its way to hostile aka fist-to-cuff. Guess who would have won that one.

Later, Carl