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Endlessly complaining about her. “Losing” her important paperwork. Glaring at her from across the room.
These underhanded behaviors sound like the hijinks of sworn middle school enemies. But these hostile acts of sabotage were perpetrated not by preteens but by two office workers locked in a battle to undercut each other’s performance and reputation.
Ultimately, one employee sued, alleging a hostile work environment, said Coby Turner, managing associate for the labor and employment group in Seyfarth Shaw’s Sacramento office. The case, which was settled confidentially, might never have been filed if the employer had intervened early on to put an end to the bullying and taunting.
Since Jan. 1, 2015, California businesses have been mandated to train managers on how to identify “abusive conduct,” or workplace bullying behaviors, as part of their instruction on preventing sexual harassment. But the law, an amendment to the Fair Employment and Housing Act, was scant on details. Now, however, a set of
regulations that take effect April 1 will provide HR professionals with needed guidance by spelling out in greater detail what the training should entail.
The amended regulations by the Fair Employment and Housing Council include instructions for employers to:
The additional guidance is welcome, Turner said, but the definitions of what behaviors are considered abusive conduct and who is a “reasonable person” remain frustratingly vague. The complaints she receives about abusive behavior usually fall into two categories: supervisors who yell at workers and those who use profanity. Yet some workers in the identical environment may remain unruffled by big-mouthed, foul-mouthed bosses. “One person’s insult is another person’s constructive criticism,” Turner said.
The new regulations must by necessity remain somewhat ambiguous, said Alison Alpert, partner and chair of the labor and employment practice group for Best Best & Krieger of San Diego. “The fear—and I think it’s legitimate—is that [a more specific definition of abusive conduct] would just increase litigation against employers in an unfair way,” said Alpert, who educates supervisors about harassment law and investigates claims of harassment and retaliation.
Complicating matters is the fact that while behaviors that constitute abusive conduct may be offensive and a clear indicator of a toxic work environment, they are not unlawful. “People dislike each another all the time,” Turner said, “but that’s not illegal.”
Heightened media coverage of bullying in schools, on college campuses and in the workplace has led many people to believe that bullying violates the law. That misunderstanding may actually help curb abusive behavior and prompt workers or supervisors to call out language or actions that are intimidating or malicious because they believe it’s prohibited.
California law bars abusive conduct in the workplace that targets someone in a category protected from discrimination under categories such as gender, age, disability or ethnic origin. Denying a job or a promotion to someone because he or she uses a wheelchair is illegal; calling his or her presentation “a piece of junk” may be evidence of poor management skills, but it’s not barred by law. As Alpert puts it: “Is it a harasser or a jerk boss?”
Abusive behavior can create a hostile work environment yet not meet the legal standard of actionable, harassing conduct, said Alpert, who has probed allegations of workplace harassment that were, upon review, more accurately defined as bullying.
Determining If It’s Harassment or ‘Meanness’
Turner recalled a racial discrimination case brought by an employee who claimed he was verbally abused because he was Hispanic. An investigation into the allegations revealed that the manager who bellowed at his staff wasn’t choosing his targets based on their ethnicity. Rather, he yelled indiscriminately at his workforce, which happened to be predominately Hispanic. Nothing in his behavior suggested any racial bias, she said, but the fact that he managed by intimidation indicated shoddy leadership skills.
When HR professionals meet with an aggrieved employee, they would be wise to drill down on the list of problematic behaviors detailed by the worker. “When employees come forward,” Alpert said, “they may not be certain what complaint they are making if they don’t really understand the harassment laws. People use the term ‘harassment’ a lot … and they don’t necessary mean it in terms of the Fair Employment and Housing Act and that legal way. They just mean ‘My boss is being mean to me.’ ”
While California law doesn’t bar “meanness,” per se, that type of behavior is toxic to morale and productivity, and its persistence can lead to workers’ compensation claims, extended leave situations or, potentially, claims tied to a protected category. If HR professionals or managers don’t intervene, resentment can simmer and entire departments or groups can take sides, creating deep rifts in the workplace, Turner said. Even if the allegations of bullying are found to be groundless, a company must still invest time and resources into an investigation and defense in a lawsuit.
Getting HR Involved
When HR professionals receive complaints about workplace bullying, they shouldn’t assume the conflict is a tiff that will quickly blow over or peter out. Labor and employment attorneys suggest that HR or a supervisor meet with the perpetrator, review company regulations governing workplace conduct, and remind him or her about the company’s expectations for appropriate behavior. If employees are engaged in bullying behavior, separating them so they no longer work in the same department or division can quash the conflict.
Instituting performance coaching can be useful as well, helping problem workers realize that their threatening, intimidating and humiliating language or behavior erodes, not inspires, others’ motivation. If an abusive supervisor or employee is unable or unwilling to mend his or her ways, the company is justified in firing the individual.
On the flip side, HR professionals may field complaints about supervisors’ abusive behavior from workers who are so quick to take offense at even appropriate and justifiable criticism that their supervisors are unable to effectively manage them. Again, a closer look into the personality dynamics at play may give the HR team insight into the conflict and help them resolve the issue. “If you tell someone their work is bad, might that be insulting and humiliating?” Turner asked. “Yes. But it’s not bullying. It’s a hard line to walk.”
June D. Bell is a San Francisco Bay Area reporter who regularly covers California labor and employment issues for SHRM.
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