Staffing Management

The A-hole Defense

By Jon Hyman

Jul. 30, 2015

We have all had those bosses. You know, the ones whose mere presence strikes fear into employees.

I remember mine. A page from his assistant made you shudder. He only had one way of communicating when he spoke to you: yelling. And God forbid you challenged him or questioned his authority. To call him difficult was an understatement. He was — pardon my French — an a-hole to work for. But, here’s the thing. He was an a-hole to everyone, which protected him from liability to anyone.

For harassment to qualify as “unlawful” harassment, it must be because of a legally protected characteristic. For example, in the case of sexual harassment, the complained-of misconduct must be of a sexual nature, or it must single out women differently than men. Nonsex-based conduct that targets women and men the same, no matter how harsh, is not sexual harassment.

What does this rule look like in the real world? Consider a workplace with a lone female saleswoman. Generally, she alleges that her manager abuses, belittles and harasses her. She admits, however, that the manager treats the other salespeople (all male) the same way.

Because the manager is an equal-opportunity abuser, she cannot sue for harassment. In the words of one court examining this very issue: “There is no evidence to suggest that the conduct, although rude and obnoxious, was motivated by gender.” Personality conflicts, albeit severe, do not equate to hostile work environment claims simply because the conflict is between a male and female employee.

There is no law against being a jerk, just against being a jerk based on some protected characteristic. Some, however, hope to change the rule. There is a movement afoot to make “bullying” illegal.

The Workplace Bullying Institute’s chief mission is to lobby legislatures to pass anti-bullying laws. According to its most recent survey, an astounding 72 percent of employees report that their employers have done nothing to curb bullying in their workplace. This number is simply not acceptable. Other jarring statistics cited by the institute in its 2014 survey:

• Almost 3 out of 4 (72 percent) employees report being bullied themselves or have witnessed other employees being bullied.

• Some 65 million U.S. employees report being affected by workplace bullying.

• Almost every adult American (93 percent) supports a law outlawing generalized bullying in the workplace.

How do you pass a law directing people to alter their innate personalities, and how do legislate away being a jerk?

Given this wave of populist support, legislatures will saddle employers with an anti-bullying law if we don’t address the issue. Moreover, once one state falls, others will follow.

The quickest way to ensure that generalized workplace bullying becomes illegal is for employers to continue to ignore it. If employees continue to report that co-workers and bosses bully them, and that their employers are not doing anything to stop it, legislatures will step in and pass anti-bullying laws.

You might think it is OK to ignore bullying in your workplace because there is no law against it, but legislatures won’t. They will fill the void with laws that you will not like, laws that will limit your discretion to manage employees out of fear they will cry “bully” and sue. Do right by your employees. Do not give legislatures any reason to pass overreaching laws that will hamper your ability to manage your employees.

So, what should you do? Treat bullying like it is illegal. Create a workplace culture in which you do not tolerate or condone bullying.

• Include bullying in your anti-harassment or other workplace conduct policies.

• Train your employees about how you do not allow bullying, and what to do if incidents of bullying occur.

• When an employee complains about bullying, do not ignore it; investigate it.

• After the investigation, implement corrective actions, commensurate with the severity of the conduct.

Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack incentive to act preventively and responsively.

To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces doomed to failure. Good bosses create loyalty and retain good employees. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from employment relationships.

Put simply: Do the right thing or the government will eventually make you.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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