Hazing Within The Workplace

05/26/11

HAZING WITHIN THE WORKPLACE
Adult Employees May Have Legal Recourse if Hazed

Films such as Animal House sometimes portray hazing to be humorous. But people who have been sexually abused, branded with hot prods, or badly beaten by paddling or caning, don't find this type of exploitation to be funny. And a surprising number of adults in the workforce and in organizations, including charitable clubs, are being subjected to abusive acts they thought occurred only to college students.

Hazing, which involves mean-spirited demands which harass, humiliate or demean others, is not only bothersome and annoying, it is frequently psychologically harmful and sometimes quite dangerous. Ironically, those injured when hazed, due to shame or not wanting to cause harm to come to those who put them in peril, often lie to doctors about what caused their injuries, according to Michelle Finkel, MD, whose report was published in 2002 in the American Journal of Emergency Medicine. This led Finkel to conclude that hazing victims have much in common with persons injured by domestic violence. Finkel said physicians need to be particularly suspicious of explanations for injuries which occurred when alcohol was being consumed by fellow members of the injured person's club, group or team. Among collegians, alcohol plays a role in 65 to 95 percent of hazing incidents, was involved in 80% of paralysis injuries and nearly 90 percent of deaths, according to a 1998 study by the National Intrafraternity Council.

Workplace laws involving sexual harassment evolved and expanded, in part, because of what an employer described as hazing, rough-play or hijinks which should have legally precluded it from being held financially liable to a male employee who was sexually abused by male coworkers. Until the U.S. Supreme Court issued its 1998 ruling in the landmark case of Oncale v. Sundowner Offshore Services, some judges were ruling that employees who were sexually hazed by co-workers of the same gender couldn't sue their employers. Joseph Oncale complained that other men on the off-shore oil derrick he worked on had sodomized him with a bar of soap and threatened to rape him. When Oncale's complaints to higher level company officials resulted in their insulting him, instead of intervening to provide protection, he quit. The Oncale ruling stopped judges from dismissing lawsuits on grounds that employees who were sexually harassed by persons of their own gender lacked legal rights to sue their employers. Instead, the ruling required judges to allow jurors to decide if sexually-charged hazing crossed over into the realm of sexual harassment. The Oncale decision, has, needless to say, discouraged those attorneys representing employers from "downplaying" sexually abusive workplace conduct by labeling it as mere "hazing" incidents. Attorneys practicing in the field of employment law consider the Oncale decision to be among the most important court rulings involving sexual harassment issues.

Ironically, firefighters who put themselves in harms way to safeguard the rest of us are among those most frequently tormented by workplace hazing. Why is hazing so prevalent among these physically fit first responders? Hank Nuwer, an author of four books on hazing and numerous studies which often cited by other researchers, believes firefighters were often hazed as students while on sports teams. Hazing, he says, is something they are "carrying" with them, as if it was part of "their bag of equipment."

In 2008, the City of Tucson, AZ paid a firefighter $60,000 after he quit toward the end of his probationary year, for claims he suffered depression due to being tied with duct tape under a faucet spewing cold water, and at other times was assaulted and subjected to name calling. Fire department investigators verified most of the incidents did occur, but described the antics as "practical jokes."

In Los Angeles, sixty percent of that city's fire fighters revealed in a survey they had participated in hazing rituals. A lawsuit brought by a L.A. firefighter who complained he had been hazed resulted in a $1.5 million pre-trial settlement. Among the incidents cited in his lawsuit was being served a spaghetti dinner which, unbeknownst to him, included dog food. The firefighter, who is Black, complained hazing directed toward him was particularly egregious due to racial discrimination. Other firefighters said they considered the dog food occurrence a non-serious prank which many of them endured during their careers. As a result of these Tucson and Los Angeles lawsuits, fire chiefs of those cities, and elsewhere, have been crusading to halt what has been a long lasting tradition in that line of work.

Numerous police departments, including the City of Miami's, have been sued for alleged hazing incidents. New Jersey State Police sergeants became trained on how to prevent the hazing from occurring after multiple governmental entities launched investigations into numerous hazing complaints. New Jersey has adopted an anti-hazing policy to protect police recruits.

Hazing also reportedly occurs in non-governmental jobs. Restaurant Business Magazine ran a cover story in 2002 describing widespread hazing within the food service industry. The article stated the practice was occurring in fine dining establishments and also in fast food joints. According to Dobra Ginsberg, a waitress who wrote a book about the restaurant industry titled Waiting, "hazing is part and parcel to the job," adding that every restaurant she worked at engaged in hazing.

Foremen in the construction industry complained hazing was harming job satisfaction and producing bad attitudes among worksite personnel, according to a 1975 issue of Journal of the Construction Industry, published by the American Society of Civil Engineers.

Though Florida Statute 1006.63 prohibits the hazing of students, it does not outlaw the hazing of non-students. Had the law provided protections to non-students, employees would have acquired an important and powerful means of legal recourse if they were retaliated against by employers for objecting to on the job hazing. That's because Florida's Whistleblower Act prohibits private sector employers of 10 or more workers from retaliating against employees on the basis of having complained about illegal conduct taking place in the workplace.

Despite this bizarre and gaping loophole on hazing prohibitions, victims and also bystanders employed in the private sector who are fired, demoted, bypassed for promotions, given fewer work hours, assigned to less favorable duties or otherwise retaliated against for complaining about workplace hazing still have legal recourse against their employers. Various laws are typically violated, including assault, battery, false imprisonment or kidnaping offenses, when many types of hazing incidents occur. So complaining about conduct criminalized by non-hazing laws still affords non-governmental workers with rights under Florida's Whistleblower Act. Non-federally employed government workers have expanded whistleblower rights permitting them to file lawsuits for complaining about unethical or disreputable practices which fail to arise to the level of illegality. All employees seeking redress under Florida's Whistleblower Act may also sue for their lost wages. Private sector employees may also seek financial recovery for their emotional pain and suffering. Private and public sector employees who prevail in their trials may also seek to have their employers made responsible for paying their attorneys' fees. Certain public sector employees must comply with strict requirements as to who they lodge complaints to, in order to secure whistleblower protections.

# # #

LORING N. SPOLTER, an attorney in Fort Lauderdale, Florida, provides legal representation throughout the State of Florida. A native of South Florida, Mr. Spolter gained his courtroom experience as a prosecutor in New York City in the Brooklyn, NY District Attorney's Office. During his tenure as an Assistant D.A., Loring had trial responsibilities and duties in the Grand Jury Bureau, the Narcotics Grand Jury Bureau, the Appeals Bureau, the Extraditions Bureau, the Narcotics Bureau and the Felony Investigations Bureau. For purposes of objectivity, Mr. Spolter writes only about cases litigated by lawyers other than himself. Information contained in this article was accurate as of April, 2010. This article is for general information use only and does not substitute for specifically tailored legal advice. The phone number for Mr. Spolter's law office is (954) 728-3494. © 2010.

ATTORNEY: FLORIDA'S ANTI-HAZING LAW EXEMPTS EMPLOYEES
Law only Criminalizes Hazing of Students, not Workers

Though employees in numerous states have filed lawsuits against employers for failing to protect them from on-the-job hazing incidents, Florida's workers have a more difficult time obtaining legal legal recourse when subjected to such legal abuse. The State's much touted anti-hazing law, Florida Statute ______ which was enacted in _______, criminalizes only hazing practices aimed at students, according to Fort Lauderdale employment law attorney Loring N. Spolter.

Spolter researched the law in preparation for writing two articles on hazing issues; with one article addressing employee rights and the other pertaining to students and their parents. "Knowing Florida had a relatively new law making hazing illegal, I assumed it protected anyone who could be subjected to hazing. I was surprised to see it had a loophole excluding employees and members of adult secret societies."

A former prosecutor in the Brooklyn, NY District Attorneys Office, Spolter, has written letters to Governor Charlie Christ and numerous South Florida members of the State's House or Representatives and Senate urging them to pass a law criminalizing any hazing of taking place in workplaces and secret societies. His correspondence to state legislators explained that until Florida makes it illegal to haze co-workers and subordinates, needless legal hurdles are imposed upon employees who seek whistleblower protections when objecting to workplace hazing practices. Victims and also bystanders employed in the private sector who are fired, demoted, bypassed for promotions, given fewer work hours, assigned to less favorable duties or otherwise retaliated against can only sue under Florida's Whistleblower Act if they complained about conduct which violated a law, rule or regulation. "Hazing co-workers or fellow members of a society or club does not violate any specific law," Spolter stated.

Ironically, firefighters who put themselves in harms way to safeguard the rest of us are among those most frequently tormented by workplace hazing, Spolter learned during his research. In Los Angeles, sixty percent of that city's fire fighters revealed in a survey they had participated in hazing rituals. A lawsuit brought by a L.A. firefighter who complained he had been hazed resulted in a $1.5 million pre-trial settlement. Among the incidents cited in his lawsuit was being served a spaghetti dinner which, unbeknownst to him, included dog food. The firefighter, who is Black, complained hazing directed toward him was particularly egregious due to racial discrimination. Other firefighters said they considered the dog food occurrence a non-serious prank which many of them endured during their careers.

In 2008, the City of Tucson, AZ paid a firefighter $60,000 after he quit toward the end of his probationary year, for claims he suffered depression due to being tied with duct tape under a faucet spewing cold water, and at other times was assaulted and subjected to name calling. Fire department investigators verified most of the incidents did occur, but described the antics as "practical jokes." As a result of the Los Angeles and Tucson Los Angeles lawsuits, fire chiefs of those cities, and elsewhere, have been crusading to halt what has been a long lasting tradition in that line of work.

Why is hazing so prevalent among these physically fit first responders? Hank Nuwer, an author of four books on hazing and numerous studies which often cited by other researchers, believes firefighters were often hazed as students while on sports teams. Hazing, he says, is something they are "carrying" with them, as if it was part of "their bag of equipment."

Numerous police departments, including the City of Miami's, have been sued for alleged hazing incidents. New Jersey State Police sergeants became trained on how to prevent the hazing from occurring after multiple governmental entities launched investigations into numerous hazing complaints. New Jersey has adopted an anti-hazing policy to protect police recruits.

Current workplace laws involving sexual harassment evolved and expanded, in part, because of what an employer described as hazing, rough-play or hijinks which should have legally precluded it from being held financially liable to a male employee who was sexually abused by male coworkers, Spolter noted. Until the U.S. Supreme Court issued its 1998 ruling in the landmark case of Oncale v. Sundowner Offshore Services, some judges were ruling that employees who were sexually hazed by co-workers of the same gender couldn't sue their employers. Joseph Oncale complained that other men on the off-shore oil derrick he worked on had sodomized him with a bar of soap and threatened to rape him. When Oncale's complaints to higher level company officials resulted in their insulting him, instead of intervening to provide protection, he quit. The Oncale ruling stopped judges from dismissing lawsuits on grounds that employees who were sexually harassed by persons of their own gender lacked legal rights to sue their employers. Instead, the ruling required judges to allow jurors to decide if sexually-charged hazing crossed over into the realm of sexual harassment. "The Oncale decision, has, needless to say, discouraged those attorneys representing employers from "downplaying" sexually abusive workplace conduct by labeling it as mere 'hazing'" incidents," Spolter commented.

To get around Florida not having prohibitions against the hazing of employees, Spolter explained that victims and also bystanders employed in the private sector who are fired, demoted, bypassed for promotions, given fewer work hours, assigned to less favorable duties or otherwise retaliated against for complaining about workplace hazing legal recourse only if they mention the specific actions involved in hazing which are made illegal by other laws. Hazing incidents can violate laws such as assault, battery, sexual offenses, false imprisonment or kidnaping So complaining about conduct criminalized by non-hazing laws still affords non-governmental workers with rights under Florida's Whistleblower Act. Non-federally employed government workers have expanded whistleblower rights permitting them to file lawsuits for complaining about unethical or disreputable practices which fail to arise to the level of illegality. All employees seeking redress under Florida's Whistleblower Act may also sue for their lost wages. Private sector employees may also seek financial recovery for their emotional pain and suffering. Private and public sector employees who prevail in their trials may also seek to have their employers made responsible for paying their attorneys' fees. Certain public sector employees must comply with strict requirements as to who they lodge complaints to, in order to secure whistleblower protections.

Now finished writing these two articles about rights employees have when hazed in the workplace and the rights students, including those in middle and high schools, and parents have when hazing occurs learning institutions, Spolter has had these articles published in the Peoples Law Section of the Broward County Bar Association's website, which can be found at BrowardBar.org.

# # #

FOR MORE INFORMATION, CONTACT:
LORING N. SPOLTER, ESQ. TEL: 954-728-3494 / FAX: 954-563-2252

LORING N. SPOLTER, P.A., 700 South Andrews Avenue, Fort Lauderdale, FL 33316

To view Loring N. Spolter's two articles on hazing issues, addressing legal rights of Employees who have been Hazed and the other article on legal recourse when Student Hazing occurs, see the Peoples Law Section of the Broward County Bar Association's website, which can be found at BrowardBar.org.