Workplace bullying is something far too many employees will experience or witness during their careers. Anti-sexual harassment laws, which are increasing in number and in scope, seek to curtail specific harassing behaviors in the workplace that undermine employee wellbeing.
However, most non-sexual harassing behavior (i.e. bullying) that isn’t based on a protected characteristic remains perfectly legal.
Related Article: A Starter Guide to Addressing Sexual Harassment in the Workplace
Bullying based on a protected characteristic may constitute a “hostile work environment.” Most employees and managers have at least heard reference to the term. However, people tend to use the phrase where it doesn’t actually apply. It’s not inclusive of draconian managers, or highly disagreeable or mean-spirited colleagues (much as it might feel that way).
So what’s the difference between a hostile work environment and workplace bullying? And how can you prevent both from taking place at your company? Let’s take a look.
Hostile Work Environment vs Bullying at Work
A hostile work environment, in addition to being based on a protected characteristic, must also be “severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive,” according to the Equal Employment Opportunity Commission (EEOC). Bullying (as opposed to harassment) constitutes harassing behavior that is not tied to, nor the product of, an employee belonging to a protected class.
Non-discriminatory harassing behavior is nowhere near acceptable, and companies should feel empowered to hold managers and employees to higher standards of behavior.
Title VII of the Civil Rights Act provides employees with protection from discrimination, but not necessarily from lewd, crude, or even abusive behavior from managers or peers. Furthermore, pervasive harassing behavior that is based on a protected characteristic may still not be illegal if such actions occur on an equal-opportunity basis (e.g. racially-tinted derogatory remarks to which employees of all races are subject). This is to say, federal law does not mandate all-around civility from American workers.
That said, state and local laws may hold both individuals and employers to higher standards. Always be sure to check laws that apply to your jurisdiction before jumping to any conclusions as to what does and does not constitute unlawful behavior.
Related Article: Get Guidance on Creating a Harassment-free Workplace in this Webinar
Federal law notwithstanding, most people will agree that non-discriminatory harassing behavior is nowhere near acceptable, and companies should feel empowered to hold managers and employees to higher standards of behavior. A respectful workplace promotes productivity, and will be a key factor in retaining top talent.
Creating a Bully-Free Workplace
A great starting point is to have an EEO (equal employment opportunity) policy in your employee handbook. This will clearly establish expectations of acceptable behavior in the workplace. Your policy should communicate your commitment to fostering a fair and inclusive workplace, and provide employees with information on raising concerns and submitting complaints to HR and management.
Once you have a policy, don’t stop there. As the old saying goes, actions speak louder than words. Make sure your company actually follows the policy. This means taking all claims seriously, conducting thorough, fair, and neutral investigations into all harassment claims, and taking appropriate corrective action.
Get the ultimate starter guide on making an employee handbook that works.
It’s also important to train your managers and employees on inclusiveness and standards of behavior. Expectations and cultural values must be constantly reinforced in order to foster the harmonious and productive work environment you aspire to achieve. Some trainings can be administered to all employees, while others will be best suited to managers.
There are many third-party providers and resources that can help employers access the proper trainings. As of 2019, for example, Justworks customers will have free access to virtual offerings through EVERFI, which satisfy state requirements on sexual harassment prevention training. Trainings are vital in not only setting a standard of decorum and heading off harassing behavior, but also making people feel both comfortable coming to work, and empowered to report inappropriate behavior in the workplace.
Expectations and cultural values must be constantly reinforced in order to foster a harmonious and productive work environment.
However firm an employer’s commitment to fostering respect and inclusiveness, harassing behaviors can still propagate through the workplace under ripe conditions. HR departments, even at companies with the highest expectations of decorum (and especially in certain creative industries), should be wary of executives or very senior individual contributors who are cruel and domineering yet incredibly capable and talented. The business might be hesitant to terminate or even reprimand the individual because their value to the business is tremendous, if not crucial to its success.
Consequences for passivity here can be grave. Exceptionally few cases exist where one employee is so valuable as to justify driving talent away. Even the most resolute employees will eventually take flight from under an overbearing or unkind supervisor.
Related Article: So You’ve Received an EEOC Charge Alleging Discrimination: Now What?
Protection Against Retaliation
Fortunately, employees do have protections under federal law (and many state and local laws) for internally reporting unlawful employment practices. Reporting discrimination internally is considered “protected activity.” More specifically, employees are protected from retaliatory action taken by the employer for reporting any behavior that an employee reasonably believes may violate EEO laws.
Employees should feel comfortable bringing offensive behaviors to the attention of management or Human Resources. You can help people feel more comfortable by taking steps to prevent retaliation. Here are some suggestions from the EEOC:
- Communicate to all employees that retaliation is strictly prohibited
- Assure employees that they won’t be punished for taking actions that are protected by law
- Respond to discrimination questions, concerns, and complaints promptly and effectively
- Ensure managers understand their responsibility to address and prevent retaliation
- Hold employees accountable for complying with your company’s discrimination rules and policies
All workers deserve respect and kindness, and many companies seek to foster a culture of empowerment and inclusiveness. Make yours a great place to work. Grow with confidence! Publish an equal opportunity policy, train your people regularly, and take advantage of every chance to reinforce your values.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.