Bullying in the Workplace Can be Labeled Harassment

September 19, 2012

By Wade W. Herring II

For Business in Savannah

Bullies are big news, but most media reports concern children or young adults still in school. What about bullying in the adult world outside of school? What does the law say about adult bullies and their victims?

The law attempts to regulate and prohibit serious misconduct. As a general rule, the law does not require people to be fair or nice to one another. The law is not a civility code.

Various criminal laws prohibit intentional misconduct such as assault, battery, stalking, and terroristic threats. In the year 2000, the Georgia legislature passed a law requiring judges to impose longer criminal sentences when the jury found beyond a reasonable doubt that the defendant had acted “because of bias or prejudice.” Just four years later, the Georgia Supreme Court struck down the law as unconstitutionally vague, because the statute did not define bias or prejudice. Additionally, the Court was concerned that the law “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Today, Georgia is one of only five states without a “hate crime” law.

Like criminal law, the civil law offers traditional remedies for the victim of a bully’s misconduct. The victim can sue the bully for money damages, asserting such time-tested legal theories as assault, battery, false imprisonment, defamation, trespass, or intentional infliction of emotional distress.

Anyone contemplating legal action, however, must first decide, “Is it worth it?” Legal action is expensive, stressful, and time consuming. The person filing suit has the burden of proof and must be prepared with witnesses, documents, photographs, or other evidence. No doubt, the defendant in such a suit, the alleged bully, would call into question the conduct and motives of the alleged victim.

In the work world, good businesses create workplaces where employees feel safe and respected. A good work environment also facilitates recruiting and retaining talent. A positive work environment encourages worker productivity.

Bullying is bad for business, but employers should also prohibit bullying at work to avoid legal problems for the business. Employees who feel mistreated will look for legal remedies, ranging from union organizing, to workers’ compensation claims, to claims of harassment and discrimination.

Federal employment laws prohibit discrimination or harassment because of race, color, national origin, religion, sex, gender, age, disability, or genetic status. Currently, sexual orientation is not a protected category under either federal or state law. For purposes of employment law, marital status is also not a protected category. The law, however, permits employers to voluntarily add “protected categories” in addition to those that the law mandates; accordingly, sexual orientation is a protected category in many workplaces.

As with the law generally, the employment laws are focused on serious misconduct. Thus, the boss can lawfully demand high standards, even when such demands create stress and tension at work. The occasional harsh word or inappropriate joke in the workplace is not against the law. The miscommunications and wounded feelings that are part of every human interaction, even at work, are not illegal. The law does not provide a remedy for every workplace slight or misunderstanding.

What the law forbids is a repeated pattern of severe or pervasive misconduct that creates an objectively hostile or abusive environment so serious that it interferes with the victim’s ability to do his or her job. The objective severity of the harassment is judged from the perspective of a reasonable person in the victim’s position, considering all the circumstances. The victim must prove that the conduct was not just offensive, but actually constituted discrimination because of race, or sex, or any one or more of the other protected categories. (In other words, the equal opportunity jerk who is offensive to everyone is not against the law.)

Employees who believe they are victims of a hostile work environment should first seek a solution at work, but they can always file a charge of discrimination against their employer with the Equal Employment Opportunity Commission (“EEOC”). Complaints not resolved at the EEOC can proceed to lawsuits, typically in federal court. Remedies include money damages from the employer/business for lost wages and benefits, compensatory damages for wounded feelings and emotional distress, punitive damages, and attorney’s fees and expenses.

Any employer with fifteen or more employees (the number of employees required for EEOC jurisdiction) should have written equal employment and anti-harassment policies, complete with a complaint and investigation procedure, as well as an anti-retaliation provision. On an annual basis, employees should be reminded of the company’s rule against harassment. “Best practices” suggest periodic training for supervisors and all employees on the concepts of harassment, how employees can avoid harassment problems, and how to complain if they have a problem. Your employment attorney can assist with creating and/or reviewing materials, presentations, and trainings.

The law prohibits serious misconduct. Good businesses encourage their employees to act according to a much higher standard: Do unto others as you would have them do unto you. Bullying is bad business.

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