Tuesday, December 14, 2010

Getting Bullied At Work - Does That Constitute an ILLEGAL Hostile Work Environment?

Studies Show That More Than One-Third of American Workers Feel That They Have Been the Victim of a Workplace Bully

A 2001 article written by Ray Williams and published in Psychology Today entitled "Workplace Bullying: the Silent Epidemic" provides the following statistics:

In two surveys by the Workplace Bullying Institute (WBI) and Zogby International, where bullying was defined as "repeated mistreatment: sabotage by others that prevented work from getting done, verbal abuse, threatening conduct, intimidation and humiliation," 35% of workers experienced bullying first hand, and 62% of the bullies were men. A Harris Interactive poll conducted in 2011 revealed that 34% of women reported being bullied in the workplace.

Verbally Abusing, Intimidating, Harassing and Humiliating Co-Workers or Subordinates is NOT Per Se Illegal Under Title VII or Any Other State or Federal Anti-Discrimination Laws

Sexual Harassment Illegal
However (and excepting bullying in the form of sexual harassment), if the bully's actions are a result of mental defect, personality disorder, poor upbringing, inferiority complex, God complex, sociopathic tendencies or just good old-fashioned mean temperament, then, no matter how vicious, persistent, demeaning or cruel the bully's conduct, it is not illegal under state or federal employment laws.

Federal, State and Local Anti-Discrimination Laws Apply Only to Workplace Harassment Due to Sexual Harassment, or Because of an Employee's Age, Sex, Race, Color, Pregnancy, Disability, Religious Beliefs, National Origin, Gender Identification or Sexual Preference

That is so because federal employment laws only make workplace mistreatment illegal if the bullying constitutes sexual harassment, or if the bullying is based upon the bully's dislike of a co-worker' or subordinate's race, color, religion, national origin, sex, pregnancy, age, disability or national origin.

While some state and/or local laws may add to the list of protected classes (for example, Philadelphia's Fair Practices Ordinance also makes discrimination based upon sexual orientation and gender identification unlawful), none declare basic bullying illegal.

Does Not Prohibit Ordinary Bullying
If You Are Employed At-Will, You Have No Protection From Being Bullied at Work, or Being Fired by Your Boss Simply Because Your Boss is a Jerk

Most of America's workers are at-will employees.

That in essence means that, subject to the protections of anti-discrimination laws such as Title VII, workers who are mistreated at work for no good reason have no protection from such abuse, nor any recourse if they are fired simply because their boss or co-worker does not like them (or likes another employee more).

Unless and Until Federal, State or Local Legislators Decide Otherwise,
You Have No Protection From Workplace Bullying
The Term "Hostile Work Environment" Applies Only to Discriminatory Mistreatment of  Worker's in Certain Protected Classes

While bullying may certainly create an intolerably hostile place to work, it does not create an illegal  "hostile work environment" under laws such as Title VII.

If You Are Fired Because You Complained About a Bully at Work, You Are Not The Victim of ILLEGAL Retaliation

And, if you complain about a bully, and are fired in "return," you do not have a claim for illegal retaliation, either.

Illegal retaliation claims exist ONLY if the employee complained that he/she was the victim of sexual harassment, or was being mistreated because of his/her Age, Sex, Race, Pregnancy, Disability, Religious Beliefs, National Origin, Gender Identification or Sexual Preference, or is Employee Exercised Rights Under Family and Medical Leave Act, Americans With Disabilities Act or Overtime Laws.

Illegal to Retaliate Against Employee
Seeking Protection Under FMLA
There are some other exceptions; for example, if you are being treated unfairly because you sought Family Leave or Overtime, or because you sought a reasonable accommodation under the Americans With Disabilities Actthen you might very well have a valid claim for illegal workplace harassment.

I know these are harsh concepts, but this is the way the law is set out.  That is the essence of the "at will" employment doctrine.  The misconception as to what constitutes a "hostile work environment" is so pervasive, that it is the first thing I Blogged about.  When I decided to post videos on YouTube, it was the first thing Video I did.  Both remain among my most "popular" Blog and Video.

To make matters even worse, just because you are being bullied does not mean that you have a "necessitous and compelling reason" to quit your job so that you would be entitled to unemployment compensation in Pennsylvania.  Generally, the Unemployment Referees expect you to put up with a fair amount of "bullying" before they say you are justified in quitting (I wonder how they would feel if it happened to them?!).

If you are being bullied to the point of thinking you need to quit your job, try and hang in there.  You may want to consult an attorney to find out about your rights before you up and quit and unknowingly sacrifice your right to unemployment compensation. 

I have helped many people in dire work situations figure out a way resign from their job while preserving their right to unemployment compensation.

Pennsylvania Family Leave and Disability Attorney

John A. Gallagher, Esquire
Helping Individuals Since 1991
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

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