Tuesday, April 23, 2019

Know your Rights – The Workplace Bullying You Face May Indeed be Unlawful Harassment

In the United States there is no law that protects targets against workplace bullying. While we have seen some state and local laws addressing workplace bullying (i.e. Tennessee and Virginia parts of California), the reality is that for the most part there still are no legal protections for targets of workplace bullying. We also do not have any specific laws addressing workplace harassment. However, what we do have is over thirty years of recognition by the SCOTUS that harassment that is based on a protected status (race, color, national origin, religion, gender, age status over 40 or disability) is a form of discrimination under the Civil Rights Act, the Age Discrimination in Employment Act or the Americans with Disabilities Act. 

The complex system of laws around the US working relationship can cause a great deal of confusion. As a result, many working people believe they have more rights in the workplace than they do. For instance, many workers believe they have a right to only be fired for just cause (which is not the case for most non-unionized workers) or have a right to free speech in their place of work (again not the case for most workers). However, the complexity of the employment laws also leads many to think that certain rights that they do have, do not exist. The area of harassment and bullying often falls into this latter category. 

Unlawful workplace harassment is subset of workplace bullying. The behaviors and outcomes of both are often identical, but for the bullying behavior to be unlawful it must be based on a protected status. So we often differentiate the two based on whether the behavior is based on a protected status and thus is unlawful (harassment) or is not based on a protected status and thus not unlawful (bullying). In my own research, I have found that a definition of bullying that is built around the legal definition of harassment (but expands to include non-status-based behaviors) captures a larger amount and number of bullying incidents than do other definitions often used in research or in proposed anti-bullying laws. While unlawful harassment is defined as: 
unwanted objectionable behavior that is based on protected status and is severe and pervasive enough to create an intimidating or hostile environment or to unreasonably interfere with the working environment, 

bullying would be defined as: 
unwanted, objectionable behavior that has the intent or effect and is severe and pervasive enough to strip the target(s) of such behavior of their esteem, voice or other human rights or creates in intimidating or hostile environment 

So, the overlap between harassment and bullying is not a negative thing, we just need to clear up any confusion about these two areas. 

Too often targets or their representatives, will identify behaviors as being bullying and thus assume they are not unlawful without digging deeper to consider whether the behaviors are based upon or impact the target based on a protected status. In many cases, the behaviors that are bullying may indeed also be a form of unlawful harassment. 

What is critical is that the targets understand the definition of workplace harassment. So that they can understand when they may have a legal remedy to address their bully’s behavior. The definition of workplace harassment is straightforward. According to the recent proposed guidance from the Equal Employment Opportunity Commission (the EEOC), the federal regulatory body that enforces the laws which make harassment unlawful, harassment must be at least partially based on a protected status[1], the conduct must be subjectively and objectively offensive, the conduct must be unwanted and it must be severe or pervasive enough to create a hostile working environment (an environment that unreasonably interferes with work, or is intimidating or hostile for the target of such behavior). 

As mentioned earlier, the definition of workplace bullying can and often does contain these exact same elements with the exception on needing to be based, at least partially, on a protected status. So, this would indicate that if someone has been a target of workplace bullying, they will have some legal protection unless the bullying is not based on (even in part) some protected status. According to workplace bullying research only 1 in 4 acts of bullying are based on a protected status. So, the reality is that most targets of bullying will not be protected legally. However, what I am hoping to help targets and their advocates to avoid here is assuming they do not have protection because the behavior they have identified is a “bullying” behavior. “Bullying” is offensive conduct both subjectively and objectively and thus falls under the definition of harassing behavior. Let’s explore the remaining elements with a bit more depth. 

First, to recap and then to give a bit more meaning to two potentially overlooked statuses, the first element requires the harassment to be based on a protected status. Based on a protected status might seem straightforward. However, too often when someone hears the term harassment or unlawful harassment, they automatically narrow the term to sexual harassment. This makes sense given the types of harassment covered in the press, addressed by organizations like the #METOO movement, portrayed in movies and even covered by employer policies. However, sexual harassment, harassment based upon gender is just one form of unlawful harassment. Notice I also stated sexual harassment as that harassment based upon gender. The use of the term “sexual” often also leads to a narrowing of our understanding of unlawful harassment. Gender based harassment may indeed be sexual in nature (inappropriate advances, staring, touching, etc.) but in most cases even gender-based harassment is not sexual. It might instead entail things like treating women differently in the workplace, avoiding giving the tougher jobs to women, speaking down to female employers, etc. In fact, about 90% of gender-based harassment is NOT sexual in nature. So, when we think about unlawful harassment, it is important that we do not narrow our thought to sexual harassment and even when we think of sexual harassment we should not narrow our thoughts to sexual types of behaviors, but instead any offensive behaviors directed at someone due to their gender. 

Second, it is important to note that according to the EEOC, sexual orientation and sexual identity are both inherently a part of gender and the harassment that occurs based on these is a form of unlawful gender harassment. We also must be aware of another often-overlooked protected status, that is the intersectional statuses. Sometimes targets are targeted not because of one protected status, but because of an overlap of statuses. For instance, we often seem black females subjected to discrimination and harassment that their white female and black male counterparts are not subjected to. This might also exist for any type of intersection of protected statuses - women with a disability, older black employees, Asian men, etc. The EEOC recognizes that workers might be harassed because of the intersection of two or more protected statuses and recognizes this form of harassment as unlawful. So protected statuses include race, color, national origin, gender (including sexual identity and sexual orientation), religion, age status over 40 and disability, as well as any intersection of these statuses. 

We also must make sure that when we think about whether harassment is based on a protected status, we look at all the protected statuses – race, color, national origin, religion, age status over 40. We must also be aware that harassers today often avoid the obvious forms of harassment. They are not likely to use racial epithets (although this is far from unheard of), instead they are more likely to degrade racial minority employees in other ways. They are not likely to make specific statements about one’s age but would be more likely to apply age-based stereotypes. Analyzing whether the behaviors are partially or fully based on a protected status takes some time and reasoning. Advocates and targets should not be too quick to dismiss a protected status as the reason or partial reason for their torment. Ask yourself if not for my race, color, national origin, gender, etc. would I be being treated this way? Does my bully treat people of a different race the same way? Does he treat others of my color the same way? Is there other evidence of my bully’s bias against people of my race, or gender (or based upon the intersection of two or more statues)? 

To be unlawful, the second element is that the behaviors must also be unwanted. This means that the target has not asked for the behaviors. This might seem like an obvious element of the definition, but here is where targets and their advocates do not necessarily narrow the definition, but sometimes they give the other side ammunition to argue the behaviors are wanted. Engaging in the same behaviors towards others, laughing off the behaviors, or even failing to make it explicitly known that the behaviors are unwanted can provide ammunition for employers to argue that the behaviors were not clearly unwanted. How to avoid this and other tips about protecting your legal rights will be covered in a separate blog and you can further read about these in an e-book available on Amazon Know your rights: Ending Harassment in your Workplace by Jerry Carbo. 

The third element is the behaviors must be offensive. This means that the target found the behaviors offensive and that a reasonable person also could have found the behaviors to be offensive. Some of these behaviors are obvious – degrading treatment, ostracizing, berating, yelling at, intimidating, threatening, ogling the target are all obvious forms of offensive behaviors. However, the behaviors often take the form of misuse of otherwise common employment/HR practices. The abuse of an attendance policy, scheduling policy, performance evaluation policy can all be offensive behaviors. 

The fourth element relates to the prior two and that is the behavior must be severe or pervasive enough to alter the terms and conditions of employment. A few key considerations here. First, severity (level of the behavior) is balanced with the pervasiveness (how often it occurs). Even low-grade incivility that occurs often enough may indeed be severe and pervasive enough to create a hostile environment. Second, the behaviors do not have to have led to a diminishment in one’s work to be actionable. In fact, what we tend to see is that targets persevere. They work hard to prevent the harassment from altering their work outcomes. Third, the harassment does not have to lead to tangible health effects or tangible economic harm to be actionable. Harassment that creates a hostile environment, that is intimidating or that creates barriers in the workplace is unlawful. 

This article is not meant to provide you with all the information you need to determine if you have been the target of unlawful harassment. Again, to read more about your rights to be free from a harassing workplace, you can purchase a copy of Know your rights in the workplace and ebook I have posted on Amazon or speak to a local attorney. The purpose here is to help you to understand that just because the behaviors you are experiencing have been labelled as bullying by you, your advocates, your employer or anyone else does not necessarily mean that they are not a form of unlawful harassment. When you have been targeted for workplace bullying, the question as to whether the behavior is unlawful will in most cases come down to whether it was in part or fully based on a protected status. Was your bully engaged in these behaviors because of your race, your color, your age, your gender, your sexual orientation, your disability, your national origin or heritage?? Do not be too quick to dismiss this possibility. If you find, that you are the target of offensive behaviors that are interfering with your conditions of employment and that there is a possibility that such behaviors are based upon your race, color, national origin, age statues over 40, disability, religion, gender or some combination of these you may indeed have legal recourse. 

[1] The current code of federal regulations also includes harassment that impacts a target(s) based on a protected status. However, this form of harassment seems to have been largely ignored by courts and the EEOC in recent years.Jerry A. Carbo is a Professor of Labor Relations and Business and Society in the Grove College of Business at Shippensburg University. He is a member of the BAT Quality of Worklife Team and author of "Understanding, Defining and Eliminating Workplace Bullying.

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