Defining and understanding harassment and retaliation
Most people know that laws exist to protect employees from discrimination and harassment. However, many don’t understand how these laws operate to provide such protection. Nor do they always understand the relationship between unlawful harassment and discrimination, or how subsequent retaliation ties in. The concepts themselves are two of the most commonly misunderstood ones in employment law. Why? Because the word harassment has a very clear meaning to most people, and the idea that a supervisor who has been given power over them by their employer can lawfully use that power irresponsibly to torture them at work seems incomprehensible. It runs against logic and basic concepts of fairness. But we are stuck with the laws we have, until and unless we take a stand against bullying in the workplace by passing legislation to address it.
For the time being, it is important to understand that the word “harassment” cannot stand alone. It is part of a bookend concept, and the other half of that bookend must be a discriminatory motive for the harassment. In simpler terms, a person can lawfully be bullied at work unless that harassment occurs because of his or her status as a member of a protected class. So unless your mean boss is mean because of your race, your gender, your religion, your disability status, etc., there is little the law currently can do to help you out.
Let’s take a little stroll through some examples. These are compilations of typical scenarios provided by actual callers over the years:
When you go to work, you find yourself being bullied and harassed by a Manager you work under. He spreads rumors about you to others in the company, including upper management. He gives you a hard time for not doing his work, and makes fun of you for “being stupid” and “air-headed.” You’ve complained, but no one is really doing anything about it. The HR manager has tried to move you to another assignment, but she just cannot find an open position. You feel trapped; you can’t sleep at night; and you have a knot in your stomach every morning when you head out to work. Upper management knows of the problem. Your boss even said it seemed like a “hostile work environment.” You can’t take much more, but cannot afford to quit your job.
Analysis: Probably no case. While the comments sound like they are gender-based, unless the comments rise to a level where any reasonable person would consider it intimidating, hostile or abusive, then it’s unlikely she could prevail in court. She might still be wise to consult an attorney, as they could walk her through how to document the situation in the event that it were to escalate to actionable harassment.
Your boss, Mr. Meany, sends you an email saying he cannot provide you overtime but allows other people in the group, who are all men, to regularly put in for overtime. Mr. Meany does not give you promised training, and makes you learn everything by yourself. Everything your supervisor does feels like he is picking on you. Mr. Meany does not harass or make nasty comments to any other employees. Mr. Meany says that he thinks you are “a weak female.” As it happens, you are the only female engineer in your department. He refuses to transfer you to another department, saying, “it is not a good place for women,” adding that “your husband is rich, and you shouldn’t be working”
Analysis: This is a maybe. There is a good deal of gender bashing in the manager’s statements, so this person should probably contact an attorney to get further review of her situation.
Your boss is the owner of a retail establishment. He yells at you and the other employees constantly, often in front of customers. He talks down to all of you, and attempts to create rifts between different employees. You are a manager for a particular shift, and once he told the manager for the another shift that he was going to fire one of your employees. You politely confronted him about it. He denied making the statement and yelled at you again in front of the entire staff. On a number of occasions, he’s gone so far as to throw things at you and others. This guy is so abusive that you have trouble keeping good employees in his shop, and, of course, he blames you. You are working 10-hour days, but being told daily that you aren’t doing enough.
Analysis: No case. He is an equal-opportunity jerk. Your options? Quit.
You believe you are a victim of a hostile work environment, harassment and retaliation. You have kept documentation of the events over the past year, and have reported the events to the appropriate HR officials. They have taken no action except to offer to move you to another department. You believe the problem lies in the actions of specific managers at various levels within the organization. Because of this, you believe the situation has not only created a hostile work environment, but has also created a situation in which retaliation is ongoing between your direct manager and yourself. There was a specific incident that occurred on March 15, in which a confrontation occurred and your manager engaged in physical intimidation by entering your personal space. You requested he stop several times. This confrontation was captured on video by company surveillance. The HR Department asked the manager to apologize, and he did. Nevertheless, you now feel very stressed and anxious when you are required to interact with this aggressive manager. You have taken time off for stress leave, but when you return, you feel the environment at work is now hostile. Subsequent to these interactions, your manager has given you a negative review and put it in your personnel file.
Analysis: No case. If all that is going on is essentially that your supervisor doesn’t like you, and you don’t like him, there’s nothing to be done under existing law, no matter how unpleasant things get. If a fight were to break out with him, your best remedies would likely be criminal rather than civil.
The question for an attorney must always be: Does your situation rise to the level of a “hostile work environment” under the law? When we turn down these cases, it isn’t because we don’t want to champion your rights; nor do we enjoy hearing stories from people whose employers treat them really badly. It saddens us to think that people who need their jobs must face such challenges. It is hard for us to tell someone that there’s nothing we can do when the thought of going to work makes them physically ill and their boss is a tyrant. But the law requires more than unpleasant interaction, even if those interactions are so unpleasant they make you sick.
The definition of harassment is as follows:
Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
The link to the full text can be found here.
Retaliation includes any adverse action taken against an employee for filing a complaint or supporting another employee’s complaint under a variety of laws. The most common type of retaliation claim involves an employee who alleges that he or she has been unlawfully harassed or discriminated against and is later punished for making such a complaint to his or her employer or to the appropriate government agency. Employers are prohibited from punishing employees for exercising any of the rights provided them under the law. The EEOC fact sheet can be found here.
The salient point to remember is that unlawful retaliation occurs only when an employer punishes an employee for engaging in legally protected activity. Retaliation can include any negative job action, such as demotion, transfer, discipline, firing, salary reduction, or shift reassignment, among others. If the action is taken by the employer after you report a legitimate case of discrimination via harassment, then it is seen as unlawful. An “adverse action” is any action that would be seen to deter a reasonable person in that situation from making a complaint. So if your boss becomes colder but more professional after you complain, that is not retaliation. Retaliation must have an adverse effect on your employment to truly be retaliatory under the law.
THE TAKE AWAY
It is often difficult for people to accept that one can be targeted at work, even screamed at daily, and yet have no recourse under the law. But California is an at-will state, which means that an employer needs no reason to fire an employee. This extends to an employer’s treatment of its employees. There are no provisions, yet, to protect workers from bullying bosses. Thus, unless your employer or its representative is acting out of a discriminatory malice, it is unlikely that an attorney can help you to rectify the situation. There is a movement currently in progress to adopt legislation to make bullying unlawful when it reaches a point that workers become ill. Should you be in such a situation, you should investigate that bill here, and add your name. Or consider calling your representatives and sharing your story. You can find your representative by using this tool.
However, if there are grounds for a claim for harassment, then you should be taking notes. Try to determine if there is an underlying cause to the behavior that you are experiencing. If any of the comments are racial in nature, geared toward showing a bias against your gender, or otherwise prohibited because they represent discriminatory behavior, then you might have a claim. Once you report a valid claim, you are protected against retaliation in the form of any adverse action by your employer, up to and including termination. This doesn’t mean it cannot happen, but it does mean that if your initial claim was valid, your employer can be held accountable for any retaliatory actions taken.
If you have been the victim of unlawful harassment, contact an employment attorney in your area. Lazear Mack is here to help whenever the law gives us the ammunition to do so. You can contact us at 510-735-6316, or complete an intake form here.
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117