Monday, June 11, 2018

What is the Difference Between a Supervisor Being A Jerk and Engaging in Unlawful Conduct?

Representing employers, we are often called upon to advise client/employers when they receive a complaint of workplace harassment. The first question we ask is whether the complainant employee is actually complaining of a violation of anti-harassment laws or are they upset because they feel like their supervisor/manager/boss is a jerk.

There is harassment under the law, which is discrimination based on a protected characteristic of the employee. This is often referred to as creating a hostile work environment by focusing, degrading or diminishing an employee’s abilities or qualifications because of their protected characteristic. A good example of this would be found in the recently decided 7th Circuit Court of Appeals case of Warren Johnson, et al. v. Advocate Health and Hospitals Corporation. In that case the court found that plaintiffs, all African American custodians, failed to show evidence that they were treated less favorably in pay and discipline than non-minority custodians, but that they did warrant a trial on the issue of whether their supervisors created a hostile work environment by making jokes, mimicking stereotypical slang attributed to African Americans and using the N-word on a few occasions. In other words, the plaintiffs failed to provide evidence that adverse employment actions, such as lower pay and discipline and discharge, were based on their race, but they did show evidence that their supervisors degraded them because of their race, about which a jury should decide whether the result was a hostile work environment.

An employee who claims the existence of a hostile work environment much show four things: 1) they were subject to unwelcome harassment; 2) that it was based on their protected characteristic; 3) the harassment was so severe and pervasive that it altered the conditions of their employment; and 4) that the employer is liable because they ignored it, somehow condoned it or failed to address it.

The key difference between harassment prohibited by law and other harassment is that degrading remarks or actions which are based on an employee’s protected characteristic, such as age, disability, race, religion, etc., violate the law. Garden variety jerks in the workplace are awful but unless they focus their attacks or remarks on a protected characteristic, they are just jerks and certainly bad for morale among those who work with them. This may feel like harassment to an employee, but it is harassment that really falls in the category of bullying. Here’s a better example, a supervisor who constantly tells a female employee that she’s just a stupid woman and isolates and degrades her, might be committing gender harassment. A supervisor who likes to call everyone stupid or moron (a favorite of a long ago former boss) is probably just a jerk because the behavior is not based on an employee protected characteristic. That boss is more of an equal opportunity bully.

Similarly, even the “stupid woman” comment might not rise to the level of harassment prohibited by the law if it is an isolated or rare comment. As the court in the Johnson case reiterated, “discrimination laws do not mandate admirable behavior.” Employees are expected to have some degree of thickness to their skin. The offensive behavior has to get in the way of the employee’s ability to perform their job. So it needs to be either severe or fairly consistent.

All of this is not to say that supervisors or co-workers should be allowed to be jerks on a regular basis. More employers are implementing anti-bullying policies in recognition that employees shouldn’t have to put up with a constant jerk and that this type of behavior, even if not in violation of the law, can badly affect morale and productivity. Employers certainly shouldn’t ignore the harassment complaint that really is a bullying complaint because it may signal a problem in the workplace even though that problem is not harassment under the law.