Horrible Bosses and the Workplace Bully. Hostile Work Environment?

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1 Horrible Bosses and the Workplace Bully Hostile Work Environment? There is a difference between a hostile work environment and a work environment that s hostile A hostile environment at work does not generally create a legal action unless it is a form of discrimination. Laws against discrimination are not intended to become a general civility code for the American workplace. Employee must have been subjected to abuse in the workplace because of a protected category 1

2 Anti-Discrimination Laws Title VII of the Civil Rights Act of 1964 Prohibits discrimination on the basis of: Race Color Religion Sex, or National Origin Sex discrimination includes sexual harassment and harassment based on gender identity and sexual orientation. Anti-Discrimination Laws Pregnancy Discrimination Act Prohibits sex discrimination on the basis of pregnancy Young v. UPS Articulated clearer standards for PDA compliance Employers need a readily articulable, reasonable and non-financial reason for denying job duty accommodations to pregnant workers Americans with Disabilities Act and ADA Amendments Act Prohibit discrimination based upon: actual disabilities; the perception of disabilities; or association with people with disabilities 2

3 Anti-Discrimination Laws Age Discrimination in Employment Act Prohibits discrimination because of an individual s age Over the age of 40 Genetic Information Nondiscrimination Act Prohibits genetic information discrimination All of the above laws prohibit retaliation for: Filing a charge of discrimination; Participating in a discrimination proceeding; or Otherwise opposing discrimination You re the Judge Employee and Supervisors are friends. Supervisor continuously tries to solicit the Employee s wife for sexual activity : Offered the Employee s wife money; Offered the Employee money and possibility of a promotion; and Suggested the two men have sex with Employee s wife and other women Richardson v. Bay District Schools, 2014 U.S. App. LEXIS 5502 (11th Cir. Mar. 26, 2014). 3

4 Bullying in the Workplace Many adults are victims of bullying bosses or co-workers 27% have current or past direct experience with abusive conduct at work 72% of the American public are aware of workplace bullying Bosses are still the majority of bullies Workplace Bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators. It is abusive conduct that is : Threatening, humiliating, or intimidating, or Work interference sabotage which prevents work from getting done, or Verbal abuse Bullying in the Workplace Workplace bullying can take many forms: Shouting or swearing at an employee or otherwise verbally abusing him or her One employee being singled out for unjustified criticism or blame An employee being excluded from company activities or having his or her work or contributions purposefully ignored Language or actions that embarrass or humiliate an employee Practical jokes, especially if they occur repeatedly to the same person 4

5 Not Bullying A manager who shouts at or criticizes all of his or her employees. Not bullying unless only one or a few individuals are being unjustifiably singled out. A co-worker who is critical of everything, always takes credit for successes and passes blame for mistakes, and/or frequently makes hurtful comments or jokes about others. Unless these actions are directed at one individual, not bullying. Negative comments or actions that are based on a person's gender, ethnicity, religion, or other legally protected status. Illegal conduct Cyberbullying Similar to traditional workplace bullying and harassment, but involves electronic devices and online communications. Includes: Malicious or threatening s, text messages, and tweets Electronic communications that contain jokes about ethnicity, religion, sexual orientation, or any other topics that would make an individual uncomfortable Public shaming via a mass Sharing embarrassing, offensive, or manipulated images or videos of an individual Spreading lies and gossip social networking sites and blogs are usually the most common ways people become victim of another person s cyberbullying. 5

6 Cyberbullying Impact on employees: Stress, low productivity, anxiety, trouble with relationships, health problems, and absenteeism Impact on employers: High turnover, low productivity, and difficulty hiring quality employees as word spreads of the toxic work environment. Potential legal action if it encourages this behavior or does not do anything to stop it. Cyberbullying What should employers do to prevent cyberbullying? Promote workplace culture where all bullying is not tolerated Establish a clear written and well communicated policy regarding bullying and acceptable use of technology Provide training for staff and management in how to deal with bullying in the workplace Remind people to stop and review an before sending and consider the reaction of the receiver Encourage face-to-face communication rather than continuing the disagreement over ; removes the emotional ambiguity of 6

7 Healthy Workplace Bill Currently no law, state or federal, against workplace bullying Initiative to enact the Healthy Workplace Bill Texas was the 29 th State to introduce Healthy Workplace Bill What the HWB does for Employers: Precisely defines an "abusive work environment" -- it is a high standard for misconduct Requires proof of health harm by licensed health or mental health professionals Protects conscientious employers from vicarious liability risk when internal correction and prevention mechanisms are in effect Gives employers the reason to terminate or sanction offenders Requires plaintiffs to use private attorneys Plugs the gaps in current state and federal civil rights protections 7

8 Healthy Workplace Bill What the HWB does for Employees: Provides an avenue for legal redress for health harming cruelty at work Allows you to sue the bully as an individual Holds the employer accountable Seeks restoration of lost wages and benefits Compels employers to prevent and correct future instances What the HWB Does Not Do Involve state agencies to enforce any provisions of the law Incur costs for adopting states Require plaintiffs to be members of protected status groups (it is "status-blind") Use the term "workplace bullying" Do you need a bullying policy? Historically, courts recognized that bad behavior isn t always legally actionable How will courts apply laws against bullying? Employers should have policies prohibiting bullying Supplement anti-harassment and discrimination policies as well as acceptable use of technology policy Define bullying Provide examples of behaviors that could constitute bullying Identify how bullying can be reported by employees and employees who witness bullying Identify how supervisors can minimize bullying and what steps they should take when bullying is witnessed or reported 8

9 The NLRB Again Policy language violates the NLRA if employees could interpret it as chilling the exercise of rights protected by the NLRA Cannot instruct employees to report unsolicited or inappropriate communications from persons within or outside the company. Deemed overly broad and unlawful: Prohibit offensive, demeaning, abusing or inappropriate remarks Could be interpreted to prohibit protected criticisms of the Employer s labor policies or treatment of employees. Instruct employees not to pick fights, to avoid topics that might be considered objectionable or inflammatory such as politics and religion, or to communicate in a professional tone when engaging online Could discourage discussions of working conditions or unionism. The NLRB Again Deemed overly broad and unlawful: Instruct employees to report any unusual or inappropriate internal social media activity Could potentially discourage employees from engaging in protected activities. Suggest using specific examples and/or limitations prohibiting: harassment, bullying, discrimination, or retaliation of co-workers that would not be permissible in the workplace... even if these actions are taken after hours, from home and on home computers inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct 9

10 The NLRB Again Social Media policies can also state: [I]f you decide to post work-related complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy. Questions 10