Workplace Bullying

Although workplace bullying is not illegal, certain forms of discriminatory bullying can be unlawful by state and federal laws.

By Brad Nakase, Attorney

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Are California employees protected from bullying in the workplace?

The state of California has several laws in place to protect employees from bullying in the workplace. These laws ensure that individuals are not subjected to hostile work environments and that their rights are safeguarded. Specifically, the California Fair Employment and Housing Act (FEHA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964 offer important protections to employees. If you’re experiencing bullying at work related to your characteristics (see next section, “Protected Characteristics), please contact our employment lawyer for workers to determine if you have a case.

  1. California Fair Employment and Housing Act (FEHA)

The FEHA is a state law that prohibits harassment, discrimination, and retaliation in the workplace. It applies to employers with five or more employees and covers various protected categories, including race, color, national origin, religion, sex, gender identity, sexual orientation, age, disability, marital status, and more. FEHA protects employees from both direct and indirect bullying based on these protected characteristics.

Under the FEHA, employers are required to take immediate and appropriate action to address workplace bullying and harassment complaints. They must investigate complaints thoroughly and take appropriate remedial measures to prevent further harassment. The law also prohibits retaliation against employees who report bullying or participate in investigations.

  1. Americans with Disabilities Act (ADA)

The ADA is a federal law that prohibits discrimination against individuals with disabilities in various areas, including employment. It applies to employers with 15 or more employees. While the ADA primarily focuses on disability discrimination, it can also encompass bullying or harassment based on disability.

Under the ADA, employees with disabilities are entitled to reasonable accommodations to perform their job duties. If bullying creates a hostile work environment that significantly affects an employee’s ability to perform their job or receive equal employment opportunities, it may be considered a violation of the ADA.

  1. Title VII of the Civil Rights Act of 1964

Title VII is a federal law that prohibits employment discrimination based on race, color, religion, sex, and national origin. It applies to employers with 15 or more employees. While Title VII does not explicitly mention workplace bullying, it does cover harassment based on protected characteristics.

Under Title VII, employers are responsible for preventing and addressing workplace harassment, including bullying, based on protected characteristics. Employers must take prompt action to investigate complaints, address the issue, and prevent further harassment. The law also prohibits retaliation against employees who oppose discriminatory practices or file complaints.

While these laws provide protections against bullying, not all forms of general workplace bullying may be covered unless they are tied to protected characteristics. That being said, employers are encouraged to address and prevent all forms of bullying to maintain a healthy and respectful work environment.

If an employee believes they may have experienced workplace bullying or harassment, they should consult their Human Resources department and follow the company’s reporting procedures. If necessary, they should seek legal advice to understand their rights and available recourse under the relevant laws.

What are protected characteristics in the workplace?

Job applicants, employees and former workers are protected from employment discrimination based on color, ethnicity, race, gender, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability and genetic information (including family medical history). In the workplace, protected characteristics are specific personal attributes or characteristics that are safeguarded against discrimination and harassment under state and federal laws. These characteristics are protected to ensure equal employment opportunities and to prevent discriminatory practices. In California, the following are recognized as protected characteristics:

  1. Race and Color: It is unlawful to discriminate against individuals based on their race or color. This includes discrimination based on ethnicity, ancestry, and physical characteristics associated with a particular race or color.
  1. National Origin: Discrimination based on an individual’s national origin is prohibited. This includes discrimination based on the country of origin, birthplace, accent, or the individual’s association with a particular national origin group.
  1. Religion: Discrimination based on an individual’s religious beliefs, practices, or observances is also unlawful. Employers must reasonably accommodate an employee’s religious practices unless doing so would cause undue hardship.
  1. Sex and Gender: Discrimination based on sex or gender, including pregnancy, childbirth, and related medical conditions, is prohibited. This protection covers both men and women and includes gender identity, gender expression, and transgender status.
  1. Sexual Orientation: Discrimination based on an individual’s sexual orientation, whether heterosexual, homosexual, or bisexual, is illegal. This protection ensures that employees are not discriminated against based on their actual or perceived sexual orientation.
  1. Gender Identity and Gender Expression: Discrimination against individuals based on their gender identity or gender expression is prohibited. This includes discrimination against transgender individuals or individuals who do not conform to traditional gender stereotypes.
  1. Age: Discrimination against individuals who are 40 years of age or older is unlawful. Age discrimination protections aim to prevent biased treatment, stereotypes, or exclusion based on an individual’s age.
  1. Disability: Discrimination against individuals with disabilities is prohibited. This includes physical, mental, or medical conditions that limit a major life activity. Employers are required to provide reasonable accommodations to enable individuals with disabilities to perform their job duties, unless it causes undue hardship.
  1. Marital Status: Discrimination based on an individual’s marital status, whether single, married, divorced, or widowed, is unlawful.
  1. Genetic Information: Discrimination based on an individual’s genetic information, including family medical history, is prohibited. This protects individuals from being treated unfairly based on their genetic makeup.

Importantly, these protected characteristics apply to various aspects of employment, including hiring, promotion, compensation, training, benefits, and termination. Employers are legally obligated to provide equal employment opportunities and create a work environment free from discrimination and harassment based on these protected characteristics.

What actions and behaviors qualify as bullying?

Workplace bullying refers to repeated and unwelcome behavior that is intended to intimidate, degrade, or humiliate an individual in the workplace. These actions create an intimidating, hostile, or offensive work environment. The following are some actions that are generally regarded as workplace bullying:

  1. Verbal Abuse: This includes insulting, ridiculing, shouting, or belittling an individual. It can involve offensive language, derogatory remarks, or personal attacks.
  1. Intimidation: Behavior intended to frighten, coerce, or induce fear in someone. This may include aggressive gestures, threats, or attempts to undermine an individual’s work performance.
  1. Humiliation: Actions that publicly shame or embarrass an individual, such as public ridicule, sarcasm, or consistently assigning menial or demeaning tasks.
  1. Exclusion and Isolation: Purposefully excluding or isolating an individual from work-related activities, meetings, or social interactions. This can lead to feelings of ostracism and isolation.
  1. Undermining or Sabotage: Deliberate actions aimed at sabotaging an individual’s work, reputation, or professional relationships. This can include withholding information, spreading rumors, or intentionally providing incorrect guidance.
  1. Unfair Criticism: Constantly and unjustly criticizing an individual’s work or performance without constructive feedback. This can include nitpicking, setting unrealistic expectations, or applying double standards.
  1. Invasion of Privacy: Intruding into an individual’s personal space, accessing personal information without permission, or spreading personal or private information without consent.
  1. Cyberbullying: Bullying that occurs through electronic means, such as email, social media, or instant messaging. It can involve sending threatening or harassing messages, spreading rumors online, or creating a hostile online environment.

A hostile work environment refers to a work environment where pervasive bullying, discrimination, or harassment exists, making it difficult or impossible for an employee to perform their job effectively. The actions and behaviors that contribute to a hostile work environment can be both overt and subtle, and they create an atmosphere that is intimidating, offensive, or hostile based on protected characteristics, as discussed earlier.

However, isolated incidents, minor disagreements, or reasonable managerial actions do not typically constitute workplace bullying. But when such behaviors become persistent, targeted, and create a hostile work environment, they may be considered workplace bullying and may be in violation of employment laws and policies.

What workplace policies contribute to bullying?

Several workplace policies and practices can contribute to bullying and foster a negative work environment. The following are some factors that, if left unchecked, can lead to workplace bullying:

  1. Lack of Clear Policies: When companies do not have clear policies in place that explicitly define and prohibit bullying behavior, it creates ambiguity and leaves room for misconduct. The absence of comprehensive anti-bullying policies can result in a lack of accountability and enable bullies to continue their behavior unchecked.
  1. Ineffective Reporting Mechanisms: If employees do not have a safe and confidential channel to report incidents of bullying, they may hesitate to come forward. When reporting mechanisms are inadequate or not widely known, victims of bullying may fear retaliation or believe their complaints will not be taken seriously, leading to underreporting and a perpetuation of the bullying culture.
  1. Lack of Training and Awareness: Insufficient training and awareness programs on workplace bullying contribute to a lack of understanding among employees and managers. When individuals are unaware of what constitutes bullying or its impact on individuals and the organization, it becomes harder to identify and address such behavior.
  1. Poor Leadership and Management Practices: A negative workplace culture can be fostered by leaders and managers who do not prioritize respectful and inclusive behavior. When leaders engage in or condone bullying, it sends a message that such behavior is acceptable, leading to a toxic work environment.
  1. Lack of Accountability: When management fails to hold individuals accountable for their bullying behavior, it sends a message that the organization tolerates such actions. The absence of appropriate consequences and disciplinary measures enables bullies to continue their conduct, perpetuating a hostile work environment.
  1. Inadequate Communication Channels: Lack of open and transparent communication channels within an organization can contribute to misunderstandings, conflicts, and a culture of bullying. When employees are not encouraged to express their concerns or grievances, tensions can escalate, and bullying behavior may thrive.
  1. Excessive Workload and Stress: High levels of stress, excessive workloads, and unrealistic expectations can contribute to a hostile work environment. When employees feel overwhelmed, undervalued, or under constant pressure, it can lead to heightened tensions and increased instances of bullying.

To address these issues, organizations should focus on implementing the following strategies:

  1. Develop and enforce clear anti-bullying policies that outline the organization’s stance on bullying and provide guidance on reporting procedures and consequences.
  2. Provide comprehensive training and awareness programs for employees and managers to educate them about workplace bullying, its impact, and prevention strategies.
  3. Foster a culture of respect and inclusivity through leadership commitment, setting a positive example, and promoting open communication.
  4. Establish confidential and accessible reporting mechanisms that encourage employees to report incidents of bullying without fear of retaliation.
  5. Implement regular performance evaluations and feedback processes to ensure that managers and employees are held accountable for their behavior.
  6. Encourage a healthy work-life balance and manage workloads effectively to minimize stress and reduce the likelihood of bullying incidents.

By implementing these measures, organizations can create a positive work environment that discourages bullying, promotes respectful interactions, and prioritizes the well-being of employees.

Can you sue for bullying in the workplace in California?

In California, employees generally cannot file a lawsuit for workplace bullying alone. However, if the bullying behavior meets the legal definition of harassment, individuals may have grounds to file a legal claim. Harassment in the workplace is governed by the California Fair Employment and Housing Act (FEHA) and occurs when unwelcome conduct based on a protected characteristic creates a hostile or abusive work environment.

To constitute harassing conduct, the following elements must be present:

  1. Unwelcome Conduct: The behavior must be unwanted, meaning that the individual on the receiving end did not invite or consent to it. It can include verbal, physical, or visual actions that cause distress or discomfort.
  1. Based on Protected Characteristic: The harassing conduct must be based on a protected characteristic, such as race, color, religion, sex, gender identity, sexual orientation, age, disability, national origin, or other protected categories specified in the FEHA.
  1. Severe or Pervasive: Harassment must be either severe or pervasive. This means that a single severe incident, such as a physical assault, can be sufficient to establish a claim of harassment. Alternatively, a pattern of less severe but persistent behavior can also meet the criteria if it creates a hostile work environment.

Determining whether conduct is severe or pervasive depends on various factors, including:

  • Frequency: The frequency of the conduct is considered. If the behavior occurs frequently or continuously over a period of time, it is more likely to be deemed pervasive.

  • Duration: The duration of the behavior is taken into account. A shorter period of severe behavior may be enough to establish harassment, while a longer duration of less severe conduct may also meet the threshold if it is persistent.

  • Nature of the Conduct: The nature of the conduct is evaluated. Conduct that is physically threatening, humiliating, intimidating, or interferes significantly with an individual’s work performance is more likely to be considered severe or pervasive.

  • Impact on the Work Environment: The impact of the behavior on the overall work environment is assessed. If the conduct creates an environment that is objectively hostile, intimidating, or abusive, it may be deemed severe or pervasive.

Whether or not conduct meets the legal definition of harassment is based on a case-by-case analysis, considering the specific circumstances and evidence presented. Employees who believe they are experiencing workplace harassment should consult with an employment law attorney to assess the merits of their claim and understand their legal rights and options.

How can an employer prevent workplace bullying?

To prevent workplace bullying and abusive conduct, employers in California can refer to Cal. Gov. Code Section 12950.1, which addresses prevention of abusive conduct in the workplace. This section encourages employers to implement certain measures and provides guidance on promoting a healthy work environment.

Abusive conduct, as defined in Section 12950.1, refers to conduct that is not necessarily based on a protected characteristic but is still detrimental to the work environment. It includes conduct that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. It can encompass acts of verbal abuse, intimidation, humiliation, and sabotage that create a hostile work environment.

To prevent bullying in the workplace, employers can take the following steps:

  1. Establish Clear Policies: Employers should develop and communicate clear policies that explicitly define and prohibit bullying and abusive conduct in the workplace. These policies should be easily accessible to all employees and outline the consequences for violating the policy.
  1. Provide Training and Awareness: Employers should conduct regular training sessions for employees and supervisors to increase awareness about bullying, its impact, and how to prevent it. Training should focus on recognizing and reporting abusive conduct, promoting respectful communication, and fostering a positive work environment.
  1. Encourage Reporting: It is important to create a culture where employees feel comfortable reporting incidents of bullying and abusive conduct. Confidential and accessible reporting mechanisms should be established, such as anonymous hotlines or dedicated email addresses, and employers should ensure employees are aware of these options.
  1. Promptly Investigate Complaints: Employers should promptly and thoroughly investigate all reports of bullying or abusive conduct. It is vital to maintain a fair and impartial investigation process, ensuring confidentiality to the extent possible, and taking appropriate disciplinary action when necessary.
  1. Take Proactive Measures: Employers should encourage open communication channels between employees and management. It is important to foster a culture that values and promotes respectful interactions, teamwork, and inclusivity. Employers should regularly assess and monitor the work environment for signs of bullying, and address any potential issues proactively.
  1. Provide Support and Resources: Employers should offer support to employees who have been subjected to bullying or abusive conduct. This may include counseling services, employee assistance programs (EAPs), or referrals to external resources that can provide guidance and support.
  1. Lead by Example: Management should lead by example and demonstrate respectful behavior. They should encourage supervisors and managers to set a positive tone, treat employees with respect, and intervene promptly if they witness or become aware of bullying or abusive conduct.

By implementing these preventive measures, employers can create a work environment that prioritizes respect, inclusivity, and well-being, reducing the likelihood of workplace bullying and promoting a positive and productive atmosphere for all employees.

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