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.

Weighing in On Weight Discrimination

In 2009 and 2010 the Equal Employment Opportunity Commission (EEOC) received the highest number of charges of employment discrimination than ever before.  The increase in discrimination charges is likely the product of a poor U.S. economy.  Employees being laid off from work are turning to the EEOC, complaining that their employer's decision to separate them from employment was motivated by unlawful discrimination.  Of course, not every employment decision is based upon discriminatory motivation or animus.  To the contrary, companies struggling to make ends meet often are left with no choice but to reduce the number of employees on the payroll. In many instances, persons selected for layoffs are just the victim of lagging sales or cash flow problems.

Of late, there has been discussion about adding weight to list of protected classes (such as age, sex, religion and race) under federal employment discrimination laws (some states already protect weight under their discrimination laws, such as Michigan).  For example, a potential employee files an EEOC charge alleging that an employer failed to hire him/her because he/she is overweight.

A few years ago, Obesity, a journal, reported that discrimination based on weight increased 66% in the past decade, up from about 7% to 12% of U.S. adults.

Weight is already protected under federal law.  Under the Americans with Disabilities Act (ADA), a person suffering from diagnosed obesity may be considered "disabled" and would be afforded protection under that law.  In addition, there have been cases brought under Title VII of the Civil Rights Act of 1964 where plaintiffs argued that weight standards imposed by an employer that were applied differently to men and women was discriminatory on the basis of sex since such standards adversely impacted women.

Like race, weight is something that is immediately identifiable.  An employer may meet a potential employee and determine that because he/she is overweight, that the person will be lazy or unhealthy.  Further, an employer may simply choose not to hire an overweight person on the basis of customer disdain or for any other reason.  Some commentators argue that weight should not be afforded protection under law since it is a mutable characteristic (a person can lose weight with a better diet and exercise), but in some instances weight gain is a result of medication or a disorder, which is not something that the person can control.

Caregiver Issues in the Workplace

Be careful in handling how you treat employees who are caregivers. If a worker must miss time from work as a result of family responsibilities, the employer may be liable for discrimination.

Increasingly, lawsuits have been filed by employees over caregiving responsibilities. Unlike other types of discrimination, which employers prevail in about 90 percent of the cases, plaintiffs have succeeded in about half of these cases. Claims of this sort arise over pregnancy and maternity leave, elder care, care for sick children, care for ill spouse, for newborn care by fathers or adoptive parents, and care for a disabled family member. Most of the cases have been brought by female workers.

In addition, even if an employer settles these type of cases, settlements can be $500,000 or more, making it very expense to be sued, let alone defend, such claims. Claims may arise out of the Family & Medical Leave Act, Title VII, or other state or federal discrimination laws.

It is very important to establish an effective supervisor training program to prevent supervisors from acting with bias when employees have family responsibilities that may conflict with workplace obligations.

What's the Ledbetter Fair Pay Act?

A female employee is hired by an employer in 2009 and receives 24 paychecks, each reflecting a discriminatory pay practice by the employer because of his disability. How long of a period does the she have to file a complaint with the EEOC alleging pay discrimination under the Americans with Disabilities Act?

The answer is governed by Lilly Ledbetter Fair Pay Act of 2009, Public Law No. 111-2, 123 Stat. 5. The Ledbetter Act was drafted to overturn the Supreme Court's May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co.

The new law adds a provision to Title VII, which provides:

"unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

So, the law treats each and every discriminatory paycheck as a new discrimination, thus re-starting the 180-day clock (300 days if the charge is also covered by state or local fair employment laws).