Menu

Workplace Worries: Bullies, Retaliation

Every day the number of lawsuits employers face due to complaints by their employees is growing.  Knowing this, most employers have taken steps and precautions in order to minimize the risk of being sued by current and former employees.  Unfortunately, the type of claims and relief available to employees is constantly changing which makes it harder for employers to ensure that they are doing everything possible to limit their exposure to lawsuits.  Recently, we have noticed certain new and important issues facing employers in Illinois. These issues include claims relating to workplace bullies, same sex harassment, and retaliations.

Workplace Bullies

Have you ever received complaints that one or more of your employees has been “emotionally abusive” or engaged in “tantrums” or even threatened other employees?  Bullying behavior could be the next type of harassment that Illinois employers must address. While proposed anti-bullying legislation has yet to become law, several states have entertained prohibiting bullying behavior in the workplace and a jury in Indiana recently awarded a $325,000 verdict to a medical assistant plaintiff in his suit against a heart surgeon who allegedly bullied him. 

Employees who are bullied have attempted to bring claims against their employers under several legal theories, including Title VII hostile work environment, intentional infliction of emotional distress, Occupational Health and Safety Act, National Labor Relations Act, and Americans with Disabilities Act.  None of these theories have been very successful for bullied employees. Perhaps that is why there is a movement to create laws specifically prohibiting bullying type behavior not otherwise addressed in the law. The legislatures in Washington, Oregon, Oklahoma, and Hawaii have reviewed bills related to some protection against workplace bullying.   While courts have consistently held Title VII is “not a general civility code for the American workplace,” the current proposals to pass laws to protect employees from workplace bullying may resemble exactly that. For example, the bills proposed in Washington, Oklahoma, and Hawaii defined bullying to include “repeated infliction of verbal abuse” and “gratuitous sabotage or undermining of an employee’s work performance.”  Oklahoma’s bill defined abusive conduct to include “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets” and behavior “that a reasonable person would find threatening, intimidating, or humiliating.”

Even though the movement to enact anti-bullying legislation is in its infancy, you may want to take a proactive approach to prevent bullying in your workplace.  You should ensure your policies and procedures cover bullying behavior, including the type of behavior prohibited and a procedure for reporting. Depending on the type of behavior, you may have other legal recourse against the employee in addition to termination of employment.  For example, you may obtain a temporary restraining order against the bullying employee who continued to pose a threat after termination under Illinois’s anti-workplace violence statutes.

Given the lack of law in this area, it may seem premature to take steps to prevent bullying in the workplace.  However, you do not want to be the “test-case” employer who may wind up paying an exorbitant judgement based on a novel bullying lawsuit.  Protect yourself and your company by adopting policies against bullying and taking prompt and appropriate action in response to any complaints of bullying.   

Same Sex Harassment

At one time or another most employers have dealt with a woman complaining of sexual harassment by a male co-worker, or a male complaining of sexual harassment by a female co-worker.  But how many of you have come across a situation where a male employee is complaining of harassment by another male employee, or a woman employee is complaining of harassment by another woman employee?  Whether or not you have had to deal with this issue in the past, it is something that all employers should be aware of and expect to see more of in the near future. 

The Supreme Court, in addressing the issue of same sex harassment, held that Title VII does not bar a discrimination or harassment claim just because the plaintiff and defendant are of the same sex.  The main issue is whether members of one sex are exposed to disadvantageous terms and conditions of employment to which members of the other sex are not exposed, i.e. that they are being discriminated against because of their sex.  However, the harassing conduct does not need to be motivated by sexual desire in order for it to be actionable under Title VII.  

Courts across the country have identified several different ways that same-sex discrimination can be inferred. The plaintiff can present evidence that the harasser sexually desires him/her by showing the harasser is homosexual.  Similarly, the plaintiff may show that he/she was harassed because he/she did not confirm to the stereotypes associated with his/her gender. The plaintiff may also demonstrate that the harasser shows a particular hostility for one sex in the workplace or may present comparative evidence of how the alleged harasser treated the different sexes when both sexes make up the workplace.  Finally, the plaintiff could show that the harasser’s conduct involved severe and pervasive physical conduct that is sexual in nature.  

It is clear that the main focus in any sex discrimination case – either same sex or opposite sex – is whether or not the harassment was based on, or because of, the employee’s sex.  To protect your company, it should be made clear to all employees that same sex harassment will not be tolerated and instruct your supervisors not to dismiss complaints merely because the complainant and alleged harasser are of the same sex.  The moral being; it doesn’t matter who is chasing whom around the desk, it only matters whether the chasing was done because of that person’s sex.

Retaliation

Although retaliation is not a new concept, it is an issue that more and more employers are having to deal with when employers are having to deal with when employees file discrimination or harassment complaints or assist in an investigation.  Imagine a situation where one of your employees does not get the promotion she believes she deserves and, instead, a male co-worker is promoted to the desired position. She complains to her supervisor that she was discriminated against because she is a woman.  Not receiving the proper response from her supervisor, she files a claim with the Illinois Department of Human Services. Before the claim can be resolved, she is demoted or some of her job responsibilities are taken away. Now, not only are you facing the discrimination claim, but also a claim for retaliation.  

Retaliation is generally defined as any adverse job action taken against an employee as a direct result of that employee’s opposition to an illegal employment practice such as discrimination or harassment.  This adverse action can be anything from demotion to discharge, suspension, elimination of work hours, reassignment of job duties, or making unsubstantiated negative comments during yearly or quarterly reviews.

There are several things that you – as an employer – can do to help minimize your exposure to retaliation claims. These include training your supervisors and managers regarding acceptable responses to complaints and implementing a retaliation policy that is separate from your other policies.  When a complaint is made by an employee, remind the employee and his/her supervisory personnel of the retaliation policy and, at the end of the investigation, make the same reminder. Finally, if an employee complains of retaliation, make sure that the company thoroughly investigates the claim and documents the results of the investigation.

Although you need not treat employees who have filed complaints or been involved in an investigation with kid gloves or give them special treatment, you do want to make sure that any adverse action you take against the employee is supported by proper documentation and is warranted. Remember, retaliation claims can be more dangerous than the underlying discrimination or harassment claim so make sure all of your supervisors and managers understand what is at stake and, when in doubt, seek legal counsel.