Bullying is a hot topic in America. The word evokes an image of a playground bully, humiliating you and diminishing your self-esteem. What is the difference between workplace bullying and illegal discrimination? When does bullying meet the legal requirements of a hostile work environment?
The concepts of bullying, harassment, and a hostile work environment are all related but different. Here is what you need to know.
What is Workplace Bullying?
Workplace bullying is defined as “unwelcome behavior that occurs over a period of time and is meant to harm someone who feels powerless to respond.” A 2017 survey by the Workplace Bullying Institute found that 61% of American employees are aware of abusive conduct occurring in their workplace. 19% of people reported being bullied at work and another 19% reported witnessing bullying at work.
Although bullying can be extremely harmful, bullying is generally not illegal in most jurisdictions. In California, bullying becomes illegal in two circumstances: first, when it is tied to a “protected class,” and second, when it crosses the line into threats to your livelihood or physical safety. In the latter case, it is illegal under California’s Bane Act, which prohibits workplace violence and threats.
What is Workplace Harassment, and How Does it Differ From Bullying?
Bullying and harassment have something important in common: both usually are based on perceived or real power imbalances. When these power imbalances are based on a protected category under the law – things like gender, race, disability, age, nationality, sexual orientation, or religion – bullying and harassment overlap, and conduct that might be described as “bullying” can also be illegal harassment.
To be illegal, harassment must be severe and pervasive and must be based on the victim’s membership in a protected class. Consistent negative commentary and mistreatment because of someone’s gender, age, race, disability, pregnancy, etc. meets this standard. But an unpleasant boss who demands unreasonable things and yells at everyone, regardless of which protected classes they do or do not belong to, does not meet this standard.
What Is the Bane Act, and What Does it Prohibit?
Civil Code Section 52.1, known as the Bane Act, gives workers the right to be free from interference with exercise of their Constitutional rights by threats, intimidation, coercion, or force. In California, residents enjoy a Constitutional right to work and seek gainful employment. So interference with these rights by threats, intimidation, or coercion violates the Bane Act.
What are common examples of violations of the Bane Act? Sometimes, an employer will threaten to report a worker to ICE or other law enforcement agencies if they exercise their rights at work. Other times, a sexual harasser will threaten a victim in order to prevent them from reporting the misconduct. Sometimes employers allow a workplace to become so fraught and dangerous that an employee feels they have no choice but to quit. In each of these cases, the worker likely has a claim under the Bane Act.
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Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.