Harassment and Hostile Work Environments Are Not What You Think
NEWSLETTER VOLUME 2.4
|January 24, 2024
Harassment and Hostile Work Environments Are Not What You Think
In all 50 states, it is still legal to be a jerk, even a really big jerk. It can also be perfectly legal to fire someone for an unfair reason and to annoy and be mean to people. Don't get me wrong, it is a very bad idea to be a jerk, annoying, and mean. Nobody likes that. And when it's tolerated on the job, it becomes a horrible place to work. But this is a weasel problem, not a legal problem.
Harassment is not illegal unless it is related to a protected factor like race, gender, or religion. And a hostile work environment is not illegal unless the awfulness is related to a protected factor and becomes so intolerable that most people could not stand to work there. I'm paraphrasing the legal tests, but the point is that concepts like harassment and hostile work environment only apply to situations that also involve discrimination or the violation of some other workplace law.
There are a few reasons why it's this way. First, courts hate running businesses and they are terrible at it. Courts so not want to figure out whether what was going on deserves some sort of legal remedy. Second, courts are overworked and it's a very bad use of their time and public funds to sort out employment disputes—unless there is an important public policy at stake. How do we tell if there's an important public policy? We know because the legislature made a law that applies and it looks like that law is being violated.
When it's just garden variety weasel power moves and people being dolts, it's a culture issue. Usually, the answer is to fire the weasels. The problem is the weasels usually have power and only impose their weasel tactics on people with less power. So, they stay and everyone else leaves as soon as they can. Lather, rinse, repeat.
Really, look at your turnover and average tenure metrics by department. Then look at your absence and leave rates for those departments. If you see potential problems, go talk to people and find out what's going on because firing weasels prevents turnover and makes recruiting and retaining your best employees easier.
This is an insightful discussion of the weasels at work problem and some ways that legislatures are looking at extending harassment law to being a jerk. I don't think it will work because trying to define what behavior is acceptable and unacceptable is not possible. Ask any employment lawyer or HR professional and look how broad the policies are in employment handbooks. Employers want maximum discretion to run their businesses the way they want to. And courts generally let them unless there are important policies at stake like protecting employees from illegal discrimination.
Weasels at work are definitely a problem, but the answer is not legal. It's leadership not tolerating bad behavior.
One of the most frequent questions we receive involves employees who claim that they have been subjected to a "hostile work environment." Under federal civil rights laws, the term hostile work environment has a specific meaning: employees who are harassed by a supervisor or co-worker due to their membership in a protected class such as race, gender, disability, etc.
Most of the complaints our clients receive, however, do not tie the alleged uncivil behavior to a protected class. Instead, the employee basically claims that someone at work is bullying or otherwise being mean to them or that they are sometimes being asked to perform work tasks against their better judgment. Outside of a few municipalities, no U.S. state provides a remedy for employees who believe that they have been subjected to uncivil behavior at work. Most states recognize an emotional infliction tort, but courts have only held employers liable in situations that involve egregious and typically criminal action.
Faced with the lack of a clear remedy for general meanness at work, a number of organizations have proposed introduction of new legislation at state legislatures that would create a civil cause of action for employees who believe that they have been exposed to abusive workplace environments. These anti-bullying or healthy workplace bills would allow employees to sue their employees for emotional distress damages.
To date, none of these measures have been enacted into law. Employers view these laws as an open invitation for lawsuits from disgruntled workers unhappy with their careers or progression at work, or those who engage in personal disputes with co-workers. State legislatures may hesitate converting ordinary disagreements or immature behavior among employees into grounds for monetary recovery. Plaintiffs’ attorneys could threaten lawsuits for the primary purpose of coercing settlements from companies that want to avoid the expense and disruption of even a successful defense of such claims.
While no employer should tolerate bullying or abusive behavior in the workplace, creation of a broad legal cause of action is likely to result in a cottage industry for lawyers. It would also force employers to attempt to regulate daily interactions between employees who may simply not be able to get along with one another.
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