Going Beyond Compliance to End Workplace Harassment

Stop bullying before it turns into unlawful harassment

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Manager is insulting his colleague

Complying with anti-discrimination and anti-harassment laws is a critical part of the job for managers and HR professionals. To create a positive workplace that is inclusive of all employees requires going beyond what is legally mandated.

Leaders can help improve their organization's culture by stopping bullying and other unwelcome behavior before it turns into unlawful harassment.

The U.S. Supreme Court has said that federal employment discrimination laws, such as Title VII of the Civil Rights Act of 1964, are not intended to create a "general civility code for the American workplace." Employers should still set clear expectations against bullying, though, and leaders should serve as role models, said Nonnie Shivers, an attorney with Ogletree Deakins in Phoenix. 

The starting point to foster an environment of inclusion is to ensure that bullying is condemned by the chief executive officer and other leaders at the top of the organizational chart, noted Mario Bordogna, an attorney with Clark Hill in Morgantown, W.Va. "That commitment has to go beyond words and carry through to tangible, supporting actions."

The 'Equal Opportunity Harasser'

Bullying is generally defined as unwelcome behavior that occurs over a period of time and is meant to harm someone who feels powerless to respond. Although the behavior can be harmful and unwelcome in the workplace, it isn't always illegal.

Title VII, which covers businesses with 15 or more employees, prohibits employers from discriminating based on color, national origin, race, religion and sex. Additional employment laws protect workers from discrimination based on age, disability status and genetic information.

[SHRM members-only resource: Harassment Complaint Form]

A manager who is mean to everyone—without calling out a person's protected characteristic, such as gender or race—is sometimes known as the "equal opportunity harasser." This manager might not be engaging in unlawful conduct, but that doesn't mean the behavior should be tolerated in the workplace.

"When we talk about the equal-opportunity-harasser defense, we're talking about a bad boss who may not be discriminating because of sex [or another protected characteristic] but is a lousy manager," explained Jim Paretti, an attorney with Littler in Washington, D.C.

Lori Armstrong Halber, an attorney with Reed Smith in Philadelphia, noted that the equal-opportunity-harasser legal defense may apply "if someone is just obnoxious and generally hostile or angry and there's no connection between that behavior and a protected class." But the defense likely won't apply if the manager "makes an issue of everyone's protected class" by, for example, being racist and sexist to workers of all backgrounds, she said.

The Supreme Court justices illustrated this point in a recent ruling (Bostock v. Clayton County, Georgia): An employer who fires a woman because she is insufficiently feminine and also fires a man for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases, the employer fires the individual in part because of sex. "Instead of avoiding Title VII exposure, this employer doubles it," the high court said.

Bostock serves as a clear warning to employers that the equal-opportunity-harasser defense—to the extent it was even recognized before in the applicable jurisdiction— likely doesn't have much ground left when the inappropriate conduct can be tied to a protected characteristic, Shivers explained.

Since Title VII is still not considered a general civility code for the workplace, courts may focus on whether conduct that simultaneously impacts several different protected classes actually meets the legal test for workplace harassment. "If a manager engages in hostile conduct toward everyone simply because the manager is mean, it's not unlawful simply because it affects all genders equally," Bordogna said. "Nothing in Bostock changed that."

SHRM Member-Exclusive Resource Spotlight
Overcoming Workplace Bias

Building Strong Policies and Practices

Attorneys agree that bullying should be eliminated from the workplace even if it isn't technically illegal. Employers shouldn't wait until behavior rises to the level of unlawful harassment, said Paretti, who participated on the Equal Employment Opportunity Commission's 2016 Select Task Force on the Study of Harassment in the Workplace. The task force's report includes "a lot of really good practical advice," he said, such as tips on how to conduct a thorough workplace investigation and build a culture of inclusion.

"Organizational culture manifests itself in the specific behaviors that are expected and formally and informally rewarded in the workplace," the task force said.

Halber observed that there is a difference in culture between an employer that approaches workplace equity solely with legal compliance in mind and an employer that proactively promotes a positive environment and recognizes that employees are an important asset. "The best employers engage employees by demonstrating respect and inclusion for all," she said.

"Beyond the actions and messages from executives in the organization," Bordogna said, "employers need to have strong policy language condemning and prohibiting any bullying, just like they do harassment."

Training employees at all levels of the organization is an essential element for eradicating workplace bias. Shivers suggested that employers provide tangible, modernized examples, anecdotes or hypotheticals during training which can clearly set expectations for respect and professionalism in the workplace. Employers should also address problematic behaviors that might be rare, such as throwing things and threatening physical harm.

Employers can build on this framework by providing robust training on and holding meaningful discussions about "unconscious bias, microaggressions, how to have courageous or difficult conversations, and other cutting-edge topics," she said.

However, simply providing the training doesn't eliminate an employer's need to have an overall diversity, equity and inclusion (DE&I) goal and framework, Shivers said, which can include business resource groups, mentoring programs, data analytics and other key components to achieve an inclusive culture.

Halber noted that everyone in the organization has to work toward DE&I goals. "Leadership has to walk the talk or it doesn't work."

Visit SHRM's resource page on preventing harassment and bullying.

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