Tuesday, February 21, 2012

Workplace Bullying

Bullying is a prevalent problem in the workplace and can be considered a form of harassment. For instance, there have been cases that have found “sexual animus” in violation of Title VII where a male is more comfortable bullying women than men.

Very few, if any, state laws protect against bullying in the workplace. But, in the Federal context, at least one court has recognized “an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men. There is no logical reason why such a motive is any less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.” E.E.O.C. v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 845 (9th Cir. 2005) Hence, bullying could be a form of unlawful harassment under Title VII. 

Another case held that a co-workers' sporadic use of abusive language, gender-related jokes, occasional teasing, and workplace bullying did not create hostile work environment. Vito v. Bausch & Lomb Inc., 403 F. App'x 593 (2d Cir. 2010)

According to a New York District Court, “to be actionably hostile, a workplace must be rendered hostile by workplace-altering conduct attributable to some statutorily prohibited factor (race and national origin are the relevant factors for our purposes here)—not simply incivility or nastiness. When we say that Title VII, and corresponding state and local laws, are not a civility code, See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), we are saying even if mean-spiritedness or bullying render a workplace environment abusive, there is no violation of the law unless that mean-spiritedness or bullying is rooted in race or national origin discrimination. An abusive workplace that is not discriminatory does not violate the law. For purposes of this case, harassment at the Westin that was not based on Plaintiff's race or national origin is not illegal, even if it was offensive. Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F. Supp. 2d 575, 606 (S.D.N.Y. 2010)

 Finally, another New York District Court held that mere workplace bullying is not enough to give rise to an actionable hostile work environment claim; rather, there must be a showing that the conduct occurred because of the employee's membership in a protected class. De la Cruz v. City of New York, 783 F. Supp. 2d 622 (S.D.N.Y. 2011)

A best practice to avoid workplace bullying:
  •  Train and educate management and staff on what is/isn't appropriate behavior;
  •  Encourage witnesses to bullying to report the conduct to the appropriate management person without fear of retaliation or reprisal;
  •  Encourage victims to report bullying, which will be promptly and appropriately investigated;
  •  Take appropriate remedial action.

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