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When Workplace Bullying Rises to Actionable Title VII Harassment

Margherita M. Albarello

December 5, 2017

Yesterday, I heard author and journalist Suki Kim describe unwanted sexual attention she received from former public radio Takeaway host, John Hockenberry (White, male).  She also described Hockenberry’s abuse and bullying of numerous Takeaway female co-hosts, producers, and interns (women of color).  Kim was being interviewed by interim host Todd Zwillich (White, male), who a few days earlier tweeted that he was “angry” and saddened to learn” of the allegations against Hockenberry.   (Hockenberry has not denied the allegations and he and the show parted ways in the summer.  Zwillich has worked for the show for years.)  Zwillich stated that he was aware of Hockenberry’s bullying, that Hockenberry never “trained his ire” on him, and that while he did not know why he was “spared,” he was thankful Hockenberry never abused him.  Kim called Zwillich out on his tweet, asking “how could you not have seen” Hockenberry’s abuse and inquiring how Zwillich could not have asked himself why he, a White male, remained employed by the radio show while the women failed.   All good questions!

Generic bullying

The courts and the Equal Employment Opportunity Commission maintain that if you eliminate the racial, sexual, age, disability, or other protected class aspect of workplace harassment and hostile work environment, you get, simply, bullying.   Neither Illinois nor federal civil rights laws cover bullying, because, as Justice Antonin Scalia said in the 1998 Oncale v. Sundowner case, Title VII of the Civil Rights Act of 1964 is “not a general civility code for the American workplace.”  Nonetheless, generic bullying merits management attention and proper remedial action.  Left unmanaged, bullying negatively impacts productivity, profits, and morale.  It also can lead to common law actions for intentional infliction of emotional distress and, in severe cases, worker compensation claims.

But what if the supervisor bullies women only?   

If women only are subjected to the bullying, the employer may have Title VII exposure. Suppose George Supervisor shouts at Martha, his subordinate female employee, frequently, profanely, and often in public.  There is little or no provocation for George’s conduct. He screams at Martha for not reading her work emails when taking time off to visit her dying sister.  George sometimes approaches Martha silently as she is working, stands behind her, and watches her for no apparent reason.  He shakes his fist and lunges at her across a table during her performance evaluation when accusing her of taking breaks with other employees in order to talk behind his back.  George conducts himself similarly with other female subordinates.  Martha continues to work for the company but two females resign due to George’s conduct.  All three sue the company for Title VII sex-based hostile work environment.  The discovery record suggests that women only are subjected to George’s behavior, at least in its most severe form.

Did these plaintiffs experience sexual harassment?

The above facts were present in EEOC v. National Education Association.  The district court dismissed the women’s claims, concluding they failed to meet the harassment “because of sex” requirement of Title VII.  After all, none of the women claimed, and no evidence existed, that George’s behavior was lewd, sexual, or that the content was gender-specific.  There was no evidence that George harbored animus towards women –  whether generally or at work  –  or had a specific motive to make women’s lives miserable.

The 9th Circuit Court of Appeals disagreed.  It found that the “because of sex” requirement was satisfied by the women’s alleged experiences.  After all, the bulk of the evidence showed that George directed his brutish behavior only at women.

The “takeaway”

Sexual harassment law is not limited to sexual advances or coerced sexual submission.  The goal of Title VII is workplace equality, not a workplace free of sexual advances.  When George victimized only women with his hostile conduct, his behavior affected women more adversely than it affected men.

Why train with Di Monte & Lizak?

In today’s diverse workplace, employers and employees are faced with the challenge of creating and maintaining environments free of discrimination and harassment.  Training with Di Monte & Lizak will help you become better equipped to establish a more respectful and lawful work environment and help limit legal exposure.  Government agencies such as the EEOC and Office of Federal Contract Compliance Programs make training a priority.  And, the EEOC’s Strategic Enforcement Plan for Fiscal Years 2017 – 2021 identifies “preventing systemic harassment” as a focus of attention.  We provide on-site, off-site, group, and one-on-one training to private, public, and not-for-profit employers, including law firms.  Let me know how we may help you.

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