A new decision from the New York federal court nicely illustrates some points that we recently made about the issue of “bullying” in the US, and its interplay, if any, with the employment anti-discrimination laws.

The pro se plaintiff was a college lecturer who regularly complained “regarding the bullying and harassment by [his Department’s] current Chair.”  He took his case to Court after the EEOC found no violation of Title VII, but told the Court “that he was not alleging that his Chair’s hostility was motivated by his race, sex, age, or national origin.”

On July 31st we posted that “If you take out the racial, sexual, age or other protected class aspect of workplace harassment and hostile work environment, you get, simply, bullying. There are no state or federal laws defining or regulating workplace bullying, and the civil rights laws do not cover it, since, as Justice Scalia stated in Oncale, Title VII is not ‘a general civility code for the American workplace.’”

bully : Business under pressure

The federal court similarly held that:

“Bullying and harassment have no place in the workplace, but unless they are motivated by the victim’s membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”), and any complaint to the Equal Employment Opportunity Commission (“EEOC”) based on them does not constitute “protected activity” under Title VII. “

The Court continued:   “Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”

Do We Need/Want Anti-Bullying Laws?

While the Court was sympathetic to plaintiff’s plight, it nonetheless said that he “must look outside Title VII to secure what may be their fair due.”   But what is outside Title VII that can help plaintiff?

Although no anti-bullying law exist in the US, more and more countries have taken up the issue — at least 25 have enacted such laws (see our post about Australia), and experts and pundits are increasingly raising the issue.

On February 25th we posted a comment from Prof. David Yamada of Suffolk University Law School, and Director of the New Workplace Institute, the author of template legislation that serves as the basis of most of the workplace anti-bullying bills introduced across the country. He told us that “I can attest that the need for such legislation is underscored by the terrible inadequacy of existing law, including tort claims (IIED) and other causes of action. … the template bill, a/k/a The Healthy Workplace Bill, sets a relatively high threshold for recovery, higher in fact than hostile work environment standards for sexual harassment. In other words, it’s about creating a cause of action for abuse, not incivility.”

So:   Should there be anti-bullying laws in the US?

 

  • Fran Sepler

    As the court noted, there is no place in the workplace for bullying or harassment, but, having been immersed in this issue for well over a decade, I am not persuaded that legal prohibitions are the way to address abusive and uncivil behavior in the workplace. Employers can implement their own policies, as the University of Massachusetts recently has, that set the expectation of fairness and reasonableness clearly, and then enforce those expectations with specific criterion and analytics. It really is within the capacity of most organizations to insist that individuals not behave in a manner that interferes with the productivity and engagement of others for no reason or any reason, and to make that insistence distinct from the necessary feedback and occasional tough messages that are inherent in the process of performance management and behavioral guidance.

    My concern is that those attracted to legal solutions are only occasionally those who have been so damaged, and the employer so non responsive that only the court can provide relief; rather, it is the individual who has become disaffected from the organization and hopes to extract ” a pound of flesh” who is likely to persist through the various steps and long time frame inherent in litigation. This is not to say that bullying does not cause pain or create a hostile environment for those involved. The insidious part of bullying is that the more you are bullied, the more you tend to look like a “bad” employee– increased absenteeism, withdrawal, hyper vigilance, disengagement are all part of the complex of being bullied…but courts only provide relief after the damage has been done, while employer policies provide the opportunity for intervention and remediation while the target is still employed, at least partially engaged, and, more than anything else, can build greater faith in their employer for enforcing a policy rather than becoming adverse to the employer while no longer employed.

  • rcohenfox

    Accept

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/

  • taralynnb

    It is important not to forget that having engaged in “protected activity”, puts you in a protected class.

    By making a report of what you, in good faith, believed violated laws or human rights, then you are protected. And, if you were subsequently retaliated against for doing what you believed was right, as evidenced by negative employment actions, threats, functional or actual demotions, following your good-faith assertion of It is important not to forget that having engaged in “protected activity”, puts you in a protected class.

    By making a report of what you, in good faith, believed violated laws or human rights, then, if you were subsequently retaliated against for doing so, as evidenced by negative employment actions, threats, functional or actual demotions, following your right to participate in legal proceeding, act as a witness, tell truth, report illegal conduct by employer, and acting in support of a colleague victimized by abuse, you fall within a ‘protected class’, and these laws apply to you.

    Please someone tell me if there is some lapse in my understanding here. But reporting abuse or being a supporter of someone in the workplace who is being abused, as long ad you in good faith believe it, and are aiming to do the ‘right’/eithical thing, you are protected from RETALIATION from the employer. Is this correct? I have been unable to find anything that states otherwise.

  • rcohenfox

    Accept

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/