Bullying in the workplace is a significant concern that can profoundly affect the mental health, productivity and overall well-being of employees. While not all forms of workplace bullying are legally actionable, certain conditions and circumstances may elevate bullying behavior from being unethical to illegal. Understanding the distinction is important for employees who need to make informed decisions when navigating a bullying scenario.
When bullying may be unlawful
Bullying generally becomes legally actionable when it crosses over into harassment that is protected under various federal, state and local laws. Specifically, when the bullying is based on a person’s protected characteristics, such as race, religion or sex (including gender identity and sexual orientation).
Similarly, bullying is often legally actionable when it involves retaliation against an employee for engaging in protected activities, such as filing a discrimination complaint, taking a legally protected leave of absence or whistleblowing.
When bullying is obnoxious but not likely actionable
On the other hand, workplace bullying that does not involve discrimination against protected characteristics or retaliation may not be legally actionable under federal discrimination laws. For example, general rudeness, non-specific personal conflicts or a demanding management style, while potentially harmful and indicative of a toxic workplace culture, might not meet the legal criteria for actionable bullying. Mistreatment may not be legally actionable if it isn’t rooted in one of these legal protections.
With this said, it’s important to understand that it’s not always easy to tell whether mistreatment is rooted in a protected condition, as many forms of bullying are subtle. Additionally, someone may say something explicitly like, “It’s not because you’re a woman that you’re not being invited to these work getaways,” yet, if a lack of an invitation is paired with other conduct or is part of a pattern of exclusion, for example, this kind of bullying conduct may prove to be actionable after all.
The nuances of both the law and workplace realities mean that it is generally a good idea to seek legal guidance if a worker is unsure of whether their rights are being trampled. After all, knowledge is power.