Category: Harassment

April 27, 2019

Workplace Bullying

Most agree that all bullying is inappropriate, but is workplace bullying unlawful? Technically, it usually isn’t. While physical attacks are illegal, mere insults, shouting, generating rumors, or giving “the cold shoulder” typically are not enough to produce a valid legal claim. However, there are some notable exceptions. Under certain laws, bullying may be a basis for a lawsuit if it is directed towards legally protected characteristics.

Generally, bullying is defined as intentional harmful conduct towards others. This can include verbal harassment, threats, insults, or physical violence. Bullying can also occur in the form of coercion, such as manipulation, generating rumors, or blackmail. This conduct can also extend to outside the workplace, such as stalking. Although there can be one singular occurrence, workplace bullying tends to occur in patterns. There is often an imbalance of power between the harasser and victim, such as a supervisor harassing employees.

Effects of Workplace Bullying

Clearly, bullying can cause physical and psychological distress for the victim. Moreover, bullying can also have harmful effects on an organization as a whole. If offensive conduct continues, it can lead to an organizational culture that accepts this type of behavior. This leads to lower employee morale and higher turnover. It can also lessen overall productivity.

Workplace Harassment

Harassment based on protected characteristics is a type of discrimination. Title VII of the Civil Rights Act of 1964 protects employees from harassment based on sex, color, national origin, race, and religion. This includes protection from sexual harassment. Other federal laws, such as the Age Discrimination and Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act also prohibit harassment. State laws also prohibit discrimination on these and other characteristics.

Harassment involves conduct that results in changing the terms or conditions of the victim’s employment. If offensive comments are directed at an employee’s protected characteristic or only to employees of a specific characteristic, there may be a basis for legal action. The standard for determining harassment is how a reasonable employee perceived the comment or statement. The speaker’s intent is not a relevant factor.

If an alleged victim can prove that unlawful harassment occurred, the employer can be held liable for the conduct. This could be the case even if the employer was unaware of the behavior, if the court finds that they should have known.

For more, read “What Makes Workplace Harassment Unlawful?”

Equal Opportunity Harasser Defense

Employers occasionally assert an “equal opportunity harasser” defense to refute the assertion that the offensive conduct was directed at a protected characteristic. For instance, a supervisor shouts at all employees regularly. When an employee attempts to bring a lawsuit where one of the allegations is harassment due to his race, etc., the employer will respond the conduct was not directed towards any protected characteristic because that supervisor shouts at all employees regardless of race. This can be a legally valid and effective defense to a claim of harassment. However, allowing this management style is not necessarily good for employee morale or deterring harassment complaints in the first place.

Common Law Tort Claims

Even if the conduct does not relate to a protected category, there is still a risk of litigation. If the offensive conduct becomes sufficiently outrageous, employees might have grounds for a tort claim. The legal standard for these claims is usually higher for plaintiffs than under the employment discrimination statutes. Where successful, damage calculations in these cases relate to the alleged mental suffering by the plaintiff as a result of the defendant’s conduct.

Protected Concerted Activity

The National Labor Relations Act protects employee activity in furtherance of collective goals. This means harassment, intimidation, or bullying of other employees on behalf of union objectives is protected under this federal law that applies to many private employers even if their employees are not unionized. For example, employees who repeatedly pressure other employees to call in sick on a particular day to stage a “sick-out” protest of company policy may have protection from discipline. This protection even extends to workplaces without unions, so long as the activity at issue aims at benefitting employees collectively in their employment.

Workplace Civility Policies

Although workplace bullying is not illegal, employers often have workplace civility policies. These prescribe discipline or termination of employees who bully other employees. These policies are most effective when there are clear definitions of terms like “bullying” and “harassment.”

Potential Workplace Bullying Laws

So far, at least 29 states have introduced bills aimed at making workplace bullying illegal. However, none of these bills have passed, so bullying in the workplace is currently not expressly illegal in any state. Remember, however, that many states have harassment laws similar to or more extensive than federal laws.

New York is one state where the Legislature might finally pass anti-bullying legislation before too much longer. There, the “Healthy Workplace Bill” has been reintroduced several times, but has not yet passed. If the bill ever succeeds, it will create a legal claim against employers who allowed bullying to occur.

The Healthy Workplace Bill, as previously proposed, would make it unlawful for employers to subject employees to an “abusive work environment.” This is defined as “a workplace in which an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to such employee, and where such employee provides notice to the employer that such employee has been subjected to abusive conduct and such employer after receiving notice thereof, fails to eliminate the abusive conduct”. Potential remedies under this bill include reinstatement, removal of the harasser from the plaintiff’s work environment, back pay, medical expenses, punitive damages, and attorney fees.

Employer Precautions

Although workplace bullying itself isn’t (yet) per se illegal, it’s not something employers should tolerate. If nothing else, with so many protected categories under state and federal employment discrimination statutes, any bullying could prompt a harassment complaint. Of course, beyond the risk of litigation, bullying hurts employee morale and hence productivity.

Still, anti-bullying laws would be very burdensome for employers. They would go far beyond traditional legal risks. Employers would need to become even more proactive in ensuring employees are nice to each other. That will be a tall task for many companies on short notice. That’s another good reason to start now in trying to improve interpersonal relationships between co-workers and with their supervisors. And, hopefully, there would be many positive impacts on the business beyond avoiding lawsuits.

Special thanks to University at Buffalo Law School student Erin Killian for her work on the preparation of this article.

February 13, 2019

Love Contracts Under #MeToo

Does your human resources department deal with love contracts? If you think this is a crazy question, then you probably haven’t gone down this road before. But these are real legal documents that some companies use when co-workers become involved in romantic relationships. Love contracts (or office relationship contracts) have never been overly commonplace. And the #MeToo movement and the related heightened attention on workplace sexual harassment issues, perhaps ironically, may be revealing even more reason not to use them.

What Are Love Contracts?

You might sooner think of a prenuptial agreement than the type of contract we’re talking about here. But these love contracts are designed primarily to protect employers, not the people who are, well, in love! However, the couple might receive some benefit as well–the ability to continue their relationship without forfeiting their jobs.

There is no straightforward legal definition of a “love contract.” But they usually address these items (perhaps among others):

Acknowledgment of a consensual romantic relationship
Reiteration of the company’s equal opportunity and anti-harassment policies
Guidelines for appropriate workplace behavior
Identification of the reporting relationship (if any) between the employees and any potential conflicts of interest
Any change in work circumstances necessary to enable the relationship to continue without impairing work performance
Recognition that romantic relationships don’t always work out
Agreement that the romantic relationship (or its dissolution) does not constitute a violation of company harassment policies

The terms of one of these contracts are usually not negotiable. The company provides the document to the employees. If they choose to sign, then they continue employment and, as they desire, their personal relationship. If either employee refuses to sign, then the company takes alternative action. This could include either re-assigning or possibly terminating one or both of the employees.

Do Love Contracts Work?

One could ask this question from many different perspectives. However, the answer would always be about the same: Maybe, in some respects, but there are no guarantees.

1. Do they encourage employees to disclose workplace romances?

Sometimes, but not always. Dating and sex are topics that most employees don’t want to talk about with HR in the first place. The prospect of possibly being asked to sign a love contract probably further diminishes the incentive to report.

Then you add in the fact that some meaningful percentage of extra-workplace relationships between co-workers are extramarital affairs. Hardly anyone will want to disclose those to their employer, much less put it in writing!

2. Do they ensure that relationships don’t cause trouble at work?

Casual dating among co-workers doesn’t have to be a big problem, and probably isn’t in many cases. The same can be true of more established relationships. But, in either situation, there’s always the reasonable possibility that at least one person will end up upset.

Keep in mind too that relationships don’t always affect just two people. Third parties can also become involved. What of the other employee who is attracted to one of the employees in a workplace relationship? People who were formally involved with one of them? Current or former spouses? For the most part, these “outsiders” won’t be part of a love contract, but could still take offense or otherwise become disgruntled about the relationships or how it carries over into the workplace.

3. Do they prevent sexual harassment claims?

Present data on that question would be hard. But love contracts likely have prevented sexual harassment claims here and there. In different instances, either because they helped employees behave appropriately regarding their relationship or simply discouraged one of the employees from making a claim in light of the existing agreement.

One could also guess that love contracts have, at times, prompted sexual harassment (or sex discrimination) claims. If nothing else, raising the legal significance of the relationship by requiring a contract could make some employees more likely to seek formal recourse when the love dies.

Legally, it is unlikely that the existence of a love contract would automatically “defeat” an employee’s sexual harassment claim. Employees can’t prospectively waive these claims as a formal matter. However, the acknowledgment of the consensual relationship could help the employer overcome some allegations (i.e., that the relationship wasn’t consensual).

As suggested above, love contracts are especially unlikely to prevent or disprove harassment or discrimination claims by employees outside of the relationship. If a co-worker claims he was passed over for a promotion that went to one of the love contract signees because that person was in a relationship with a decisionmaker (the other love contract signee), then the love contract would probably be irrelevant as to that claim.

How Does #MeToo Enter the Equation?

From a societal standpoint, it probably shouldn’t. Workplace sexual harassment has always been inappropriate, and it has been illegal for many years.

At the same time, most companies that have asked employees to sign love contracts probably had good intentions. They weren’t prioritizing hiding sexual harassment. They were trying to make sure that nothing unwelcome was occurring in the first place. HR wouldn’t (in all but the worst run organizations) put undue pressure on an employee to sign an agreement saying they were having a consensual sexual relationship if the employee didn’t believe at the time that it was consensual. If the employee instead said they felt subject to harassment, good companies would have promptly investigated the claim and taken appropriate corrective action.

The positive impact of love contracts on employees has been that they were able to continue to pursue their hearts and their careers (potentially) without interruption. Without love contracts, employers might have (lawfully) forced the employees to choose between their relationship or their jobs.

Now, of course, sexual harassment is at the forefront of media and business attention. That’s good in the sense of hopefully reducing the incidence of harassment. But it does risk increased litigation, which imposes costs on employers.

All told, anyone faced with a workplace romantic relationship these days should be on high alert. Again, no one (whose opinion matters) wants sexual harassment to occur. We don’t want employees to be disadvantaged because they didn’t accept romantic or sexual advances or because co-workers did. At the same time, few employees want to go to HR and put this target on their backs. And, frankly, probably fewer and fewer human resources department or managers want to hear about these relationships because of how complex the implications can be. Sure, they’ll try to do the right thing as problems arise, but that’s different than proactively asking people to sign legal documents related to their romantic, probably sexual, activities.

What’s the Alternative to Love Contracts?

Let’s leave open the possibility love contracts might still work well in some situations. Use them thoughtfully, on a case-by-case basis, though consistent with company policies. Get legal advice and don’t assume they’ll solve all your problems.

As an alternative, many companies have anti-fraternization policies. The limits of these policies vary. Some prohibit any dating or romantic relationships between employees. Others only restrict relationships between employees in the same departments or within the same reporting structure.

Unfortunately, these fraternization or dating policies share many of the same side-effects as love contracts. Principal among them is that they encourage employees to hide their relationships at work. On the one hand, this could be good to the extent that it prevents the relationship from directly affecting the workplace. On the other hand, it can create animosity among employees who do find out about relationships.

Again, it’s not fair to universally condemn or endorse anti-fraternization policies. What works in one workplace might not work in another. But there is one policy that is paramount for all organizations: the anti-harassment policy.

All employers should have written anti-harassment policies covering sexual harassment and all other categories protected by applicable laws (which may vary from state to state). Whatever preventative measures might be in place, employers must take all allegations of sexual harassment seriously, investigate promptly, and take appropriate action.

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November 1, 2018

EEOC: 2018 Sexual Harassment Data Even Worse

On October 31, 2018, the U.S. Equal Employment Opportunity Commission reported final data on fiscal-year 2018 sexual harassment charges. The EEOC had issued preliminary numbers for its fiscal year ending September 30, 2018, earlier in October. The new figures show an even greater uptick in sexual harassment cases.

[Click for more on the EEOC’s preliminary 2018 sexual harassment data report.]

Final FY 2018 Sexual Harassment Statistics

The EEOC is now reporting a 13.6% increase in sexual harassment charges versus FY 2017. Based on prior-year data, this equates to approximately 7,632 sexual harassment cases filed between October 2017 and September 2018.

Initially, the EEOC reported a 12% rise in these charges.

Any meaningful increase in sexual harassment charges is notable. As shown in the chart below, there had been a consistent decline in such cases over the past decade.

Ironically, the EEOC’s 2018 fiscal year began right at the beginning of the #MeToo movement. Although the statistics do not necessarily prove causation, the circumstances strongly imply a connection.

The EEOC also disclosed that hits on its sexual harassment webpage doubled over the past year.

EEOC Calls for “Holistic Approach” to Prevent Harassment

The EEOC released the updated statistics at a public meeting entitled “Revamping Workplace Culture to Prevent Harassment.” The meeting was held at the agency’s headquarters in Washington, D.C.

“Leadership and accountability set the tone and the expectation that harassment will not be tolerated in a workplace,” said Victoria A. Lipnic, Acting Chair. “Over the past year, we have seen far too many examples of significant gaps in both areas. Our witnesses today stressed how both leadership and accountability must also be driven throughout an organization from the line employees, to the supervisors, to the CEO, and to the Board.”

EEOC Commissioner Chai R. Feldblum co-chairs the agency’s Select Task Force on the Study of Harassment in the Workplace. She added that “No one element, alone, will suffice. Instead, it takes a holistic effort that must start at the top with strong and committed leadership.”

Several witnesses representing various constituencies presented at the October 31, 2018 public meeting. These included Alejandra Valles, Secretary-Treasurer of SEIU United Service Workers West; Anne Wallestad, president and CEO of BoardSource; and Professor Christine Porath of Georgetown University.

The EEOC will also accept public comments into the record of the meeting for 15 days.

Additional information about the public meeting is available here.

An Issue We Can’t Ignore

The latest reports from the EEOC only underscore what has already become evident. Our workplaces are not yet free from sexual harassment and employees are coming forward more often.

Employers must acknowledge at least their legal obligation to prevent and redress incidents of sexual harassment. Failing to do so can have a devastating impact on your company.

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