Preventing Workplace Harassment, Discrimination, and Retaliation

employee; or it creates a risk to the health or safety of the employee(s). Workplace bullying may involve an abuse or misuse of power. Bullying behavior creates feelings of defenselessness and injustice in the employee and may undermine the employee’s sense of dignity at work.

Bullying and abusive conduct usually involves repeated attacks against an employee, creating a continuing pattern of behavior.

Bullying situations may involve employee-on-employee bullying as well as a supervisor bullying a subordinate employee. “Mobbing” is another form of bullying, in which a group of co-workers target another worker or group of workers. Importantly, a tough or demanding boss is not necessarily a bully. As long as the supervisor or manager is respectful, professional and fair, and the motivation behind the manager’s conduct is legitimate (e.g., the supervisor or manager is simply seeking to obtain the best performance by setting high performance and safety standards), such conduct is acceptable. It is only where the supervisor or manager engages in personal attacks or other unprofessional conduct does the supervisor or manager cross the line into bullying/abusive conduct. C. B ULLYING / A BUSIVE C ONDUCT I S N OT I LLEGAL H ARASSMENT It is important to understand the distinction between bullying/abusive conduct and illegal harassment. In order for an act to be illegal and actionable harassment, the bullying conduct must be “because of” an employee’s protective status (i.e., the harassing behavior must be because of the employee’s age, gender, religion, marital status, medical condition, disability, sexual orientation, etc.). Though California law now requires that mandatory harassment prevention training for supervisors include a component on “prevention of abusive conduct,” abusive conduct in the workplace is not in itself illegal under Title VII or FEHA. All the law requires is the added component of supervisor education and training on the prevention of abusive conduct. It does not impose liability on the abuser, or on the employer for failing to stop acts of abusive conduct. Bullying and abusive conduct, as opposed to illegal harassment, are not directed at a protected classification. Rather, bullying/abusive behavior happens when the harassing conduct is done for the purposes described above, and may occur between people of like protected statuses. Bullying can occur between workers of the same race, national origin and gender. In fact, according to some studies, as much as 61% of bullying involves same-gender harassment. Therefore, bullying and abusive conduct themselves are not illegal in terms of employees’ civil rights. However, once the conduct is identified, management should consider how to address it, because it can violate an agency’s personnel rules (e.g., rules prohibiting “discourteous” treatment), it disrupts the workplace, and it may nonetheless lead to claims and complaints of illegal harassment because the bully’s motivations are not always clear. Thus, in order to avoid costly investigations, administrative review and even litigation, an employer would be well served to make all reasonable efforts to eradicate bullying behavior in the workplace. Due to

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 25