23 Oct Bullying and harassment at work
Many people experience what they consider bullying and harassment at work. While bullying and harassment is morally wrong, it’s not always unlawful. In fact, the most common forms of this conduct are not prohibited by state or federal employment law. That’s because the major anti-harassment laws define harassment fairly narrowly. Much of what ordinary people would describe as bullying or harassment does not fit into that definition. So when does bullying and harassment at work become unlawful?
When bullying and harassment at work becomes unlawful
The two major laws prohibiting workplace harassment are Title VII and the Fair Employment and Housing Act, or the FEHA. Title VII is federal law, the FEHA is state law. They both apply in California. Title VII and the FEHA mostly take the same approach to harassment. Both prohibit harassment, but only harassment based on certain characteristics. For example, if your boss is simply a jerk that is constantly rude and demeaning to you, that’s probably not harassment as defined by Title VII or the FEHA. But if your boss is rude and demeaning to you because of your race or gender, that may be actionable harassment.
A good way to illustrate this is a manager who insults your intelligence. This comes up quite often and can fall on either side of line. If your manager tells you she doesn’t think you’re smart or good at your job, that’s probably not harassment under Title VII or the FEHA. Now suppose your boss says that she doesn’t think African Americans are as intelligent as other groups and implies you can’t do your job well because you’re African American. This is the type of conduct that Title VII and the FEHA were enacted to address. In the simplest terms, bullying and harassment become unlawful when based on a protected characteristic.
It’s important to note that sexual harassment is different from other types of harassment. Sexual harassment is unlawful under any circumstances and it doesn’t matter what the harasser’s motive is.
When is harassment based on a protected characteristic?
Garden variety harassment isn’t typically unlawful, but when does it cross the line? The strongest cases generally involve repeated use of slurs or other explicitly derogatory comments. This can also be conduct such as making threats or drawing offensive symbols around the workplace. But in most cases, things will be a little more complicated. Just because your harasser hasn’t repeatedly used the most offensive possible words to refer to you doesn’t mean it’s not harassment. For example, the use of stereotypes can be evidence of unlawful harassment.
Typical bullying or rude treatment is not unlawful. And it’s not necessarily a question of severity. Even severe bullying might not be unlawful if it isn’t based on some protected characteristic. But it’s a fine line and it’s not always obvious the kinds of conduct that rises to the level of unlawful harassment. If you’re not an attorney, you may overlook conduct that crosses the line. Accordingly, if you think you are being bullied or harassed at work, you should speak with an employment attorney, even if you’re not sure whether it’s based on a protected characteristic.
If you believe your are experiencing harassment at work, contact the Khadder Law Firm today for a free consultation.