The topic of “bullying” is very timely, with campaigns underway to raise awareness of bullying at school and to make harsher punishments for it. There’s also a lot of interest in the topics of workplace bullying and harassment thanks to the #metoo movement and changing norms about the type of behavior that are acceptable in the workplace or not.

When it comes to specific claims involving bullying at work, however, it may not be nice, but sadly it also may not be illegal. Sometimes, it is, though… so, schedule a consult with an employment law attorney or read on to find out more!

Do I have an employment law claim if my boss is bullying me at work? What about if co-workers are bullying me?

As an employment lawyer, I get asked this question a lot, and the answer often surprises people, because it’s often “no,” unless the reason you’re being bullied is due to discrimination based on belonging to a protected class, or retaliation based on having reported discrimination or another illegal act.

Do I have a claim for hostile work environment based on bullying?

Again, the answer is often “no, but it depends.” Let me explain further! (Or, better yet, schedule a consult for individualized advice tailored to your own situation.)

In the employment law arena, often the general concept of “bullying” is confused with the very specific legal concept of “hostile work environment.” The reason for this may be that sometimes employees think that a hostile work environment exists if one of their supervisors or co-workers is “hostile”– i.e., threatening, mean, loud, obnoxious, sabotaging, manipulative, etc.

This is an incorrect but understandable definition of “hostile work environment.” For better or worse, there is no law stating that a supervisor or co-worker must be civil, cooperative, nice, etc. There is no law forbidding them from being mean or manipulative. A supervisor is legally allowed to be a “jerk” or a bully, to everyone or even to a certain individual or a group of individuals that he just doesn’t like. (It’s a defense I like to call the “equal opportunity jerk” defense!)

I can’t believe my boss is allowed to be such an abusive jerk?! Isn’t there any way it’s illegal?

If a supervisor is harassing or retaliatory towards one individual or a group of individuals based on their legally protected status, such as race, religion, gender, sexual identity, age, or disability, then a case of workplace discrimination could exist, which is very much illegal. And “hostile work environment harassment” exists when an employee is subjective to unwelcome and harassing conduct based on the employee’s protected status. 

The circumstance could be that a boss bullies a subordinate by calling her homophobic insults based on her real or perceived sexual orientation, or that a co-worker tells sexually offensive jokes and shows sexually suggestive photos to an employee based on her gender, or a group of co-workers tell racially offensive jokes around an employee based on his race. These situations represent conduct that could rise to the level of hostile work environment if it is not only subjectively offensive to the employee but also objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.

“Severe and pervasive” is a pretty high standard to meet, so, it’s important to have an employment law attorney review the facts and circumstances of your case to see if you have a claim. Here’s where you can book a consult!

In the meantime, though, here are some further Q&As for your own knowledge:

How do I know if my claim rises to the level of a hostile work environment?

Courts look at a variety of factors to determine whether the employer’s actions are severe and pervasive, but suffice it to say that a one-time off-hand comment by a co-worker is likely not enough to create a hostile work environment. Rather, the treatment must be ongoing or sufficiently dramatic enough to rise to the level of illegal conduct.

Are there other times when being bullied at work could be illegal?

Yes, mistreatment that is a form of retaliation is also illegal in the workplace. For instance, if the employee is being targeted for something she did that is protected or encouraged under the law–such as organizing a union or exercising her union rights (even talking to other employees about working conditions, pay policies, or union rights); filing a worker’s compensation claim or filing or participating in a discrimination claim (including being a witness in someone else’s case); or reporting safety or fraudulent violations by the company–then the “bullying” is illegal as it is in fact retaliation.

In fact, if you make a report to your employer or third party investigatory body about something you believe to be illegal, you don’t even have to be right that it’s illegal. You just have to have a good faith basis that it is, and then you are protected from having your employer mistreat you at work in retaliation for reporting it and in an effort to try to force you to quit.

What about harassment? Isn’t that illegal at work?

In and of itself, “harassment” at work isn’t necessarily actionable against the employer. For instance, if your co-worker won’t stop coming over to your desk to yap about their love of the Yankees, or even if your boss says that you can no longer bring noodles to work because he doesn’t like the way they stink up the break room, your employer is not obligated to do anything to stop these actions and can’t be held liable for failing to, unless you can prove they are related to a protected status you fall into. For instance, if your co-worker insults you for not liking the Yankees because you’re a girl and you complain to HR about gender discrimination and get fired, that could be a claim. If the food you bring to work is part of your race/ethnicity and your boss hones in on that aspect of it and suddenly gets the whole office to join in on making fun of food that is culturally different, that could be a claim.

There is also the phrase “sexual harassment” that applies specifically in an employment law context. It is a type of gender discrimination that usually involves unwelcome physical advances or sexual comments at work, which you are expected to put up with or face retaliation for if you don’t. If a boss gives an employee a negative evaluation and treats him badly because he won’t date her or sleep with her, then “quid pro quo” harassment is at play.

Employer Policies Regarding Civility and Anti-Harassment

It’s not uncommon for employers to have handbooks or otherwise promote employment policies mandating that employees treat each other with civility and professionalism and/or which prohibit workplace harassment and bullying. These policies often promise or explicitly promote a safe workplace for employees where they can feel free from mistreatment by their bosses, management, peers and co-workers.

They also often provide mechanisms and resources for employees who feel threatened to report acts in violation of the handbook to the Human Resources Department (HR) or others in charge, as well as explain the process for which such reports or disputes will be handled. These policies can give rise to claims of breach of contract if an employee does not in fact feel safe at work, especially after following the procedures to report violations. These types of claims can work hand and hand with retaliation claims as well, if reporting harassment in violation of company policy then leads to further harassment.

So what can I do if people are being a jerk to me at work?

Sadly, not much, unless the bullying is based on an illegal reason such as discrimination or retaliation. Often the only solution is to start looking for another job because some are definitely better than others! Just because a workplace is toxic does not mean that a claim for “toxic work environment” or “hostile work environment” based on things like pettiness, drama, backstabbing, gossip, or mean comments based on one’s physical appearance, personality, work performance, or favorite baseball team exists.

On the other hand, however, as mentioned above, the subject of the mean comments or the reason behind them can be important. If an employee is made fun of because of their hair style or way of dressing which is based on their race/ethnicity, or if they are made fun of based on their work performance/style or “personality” when it’s really a mental health disability and things are said that connect the two, then potentially there could be a claim.

If a supervisor picks on and adversely affects an employee because of the employee’s religion, then it’s illegal discrimination. On the other hand, an employee who has a supervisor who is simply being a bully for no other reason than the fact that he or she likes to be a bullying jerk is not subject to a hostile work environment no matter how “hostile” or toxic the work environment feels. Yet if that employee makes a complaint with HR based on a policy in the handbook that protects employees from bullying, and/or because he believes he is being subjected to religious discrimination even if in fact he is not, or he believes the boss is doing something illegal even if in fact he is not, and that employee is lately retaliated against for making the report, he could now have a claim for retaliation.

How do I know if I have a claim or not?

To summarize, although general bullying at work isn’t protected under employment law, there are many situations in which it can be illegal. Only an employment lawyer will know for sure whether a claim exists and be able to judge its strengths and weaknesses.

Like many areas in the law, this one is complicated and perhaps the least understood by the general workplace public. Sometimes employees think they have a clear claim when they don’t. Other times, employees don’t realize that the reason the bullying is happening can be based on a protected status they didn’t know they fell into. And still other times, there are certain things the employee can do to protect themselves from further mistreatment at work.

This is why it is very important to consult with an employment lawyer to receive legal advice about what to do in your situation, your rights at work and whether you have a case.

Gain knowledge and peace of mind with a consultation!

The Law Office of Anita M. Kelley offers experienced, knowledgeable advice and representation in the area of employment law. Text (505) 750-3036 night or day to schedule a consultation immediately or whenever works best for you. Or simply click here to book the consultation yourself!