We Are Open (With Safety Precautions) & Ready To Help:  Click Here To Watched Our Covid-19 Webinar — What Employers Need to Know

Bullying vs. Harassment in the Workplace—What’s Actionable?

Bullying vs. Harassment in the Workplace—What’s Actionable?


Picture the workplace bully: that manager that publicly humiliates any employee who makes a mistake at work, belittles any employee that dares talk back to him, and then storms down the hall bellowing "I'm in the mood to fire someone today!" He's bad for employee morale, but has he engaged in actionable harassment? If he focuses his bullying on a particular protected class of employees, such as women, people over 40, racial minorities, etc., then yes. But if he abuses everyone and anyone, regardless of gender, age, race, etc., then he is what we like to call an "equal opportunity harasser," and his behavior is probably not actionable under federal anti-harassment laws. That doesn't mean it should be tolerated, though. This kind of behavior is likely to contribute to high employee turnover and the loss of good employees. Moreover, such behavior is likely to upset employees so much that they may consult with an attorney and/or file a charge with the EEOC. While the charges and lawsuits that result from these actions may be legally defensible, they are still going to cost the company attorneys' fees and time to defend. The company's reputation may take a hit, too.

Similarly, if an employee abuses another employee simply out of personal spite or vindictiveness, it is not actionable harassment, at least in Texas. In Alamo Heights Indep. Sch. Dist. v. Clark (Tex. en banc, No. 16-0244, opinion issued April 6, 2018), the Texas Supreme Court ruled that the bullying and harassment of a female middle school coach by another female coach was not actionable harassment because it was not motivated by the plaintiff's gender. Though the bully made comments about plaintiff's body and sexuality and made the plaintiff's life miserable, the court said the comments were a result of personal dislike and vindictiveness and therefore, were not unlawful harassment. The employer won this case—but it had to litigate all the way to the Texas Supreme Court to do so.

Although there can be a legal distinction between bullying and actionable harassment, it is a distinction without a difference at the time an employee makes a complaint to the company about the behavior of another employee. As we have advised in the past, a company should never ignore an employee complaint of "harassment." A company should conduct some form of investigation in response to every complaint. If an employee has taken that step of using the company's complaint procedure, the company needs to show that it takes matters of harassment—and bullying-- of employees seriously. Otherwise, the company may be doomed to high employee turnover and expensive lawsuits.

Kathleen J. Jennings
Author: Kathleen J. JenningsEmail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Principle
About:
Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.
Articles:

  • Home
  • Articles
  • Bullying vs. Harassment in the Workplace—What’s Actionable?

Wimberly, Lawson, Steckel, Schneider & Stine

3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 /404.365.0900

Where Experience Counts


Thank you for visiting the firm's website. Please note that this website is intended for general information purposes only and does not constitute an offer of representation or create an attorney-client relationship with the firm. The firm welcomes receipt of electronic mail but the act of sending electronic mail alone does not create an attorney-client relationship. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the firm's copyright notice.

© 2020 Wimberly, Lawson, Steckel, Schneider & Stine P.C. | Site By JSM