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Workplace Bullying – Is It Protected Discrimination?

By Leeds Brown Law | January 22, 2015

Employers and Management Find Ways to Circumvent Discrimination Laws

Critics say that workplace discrimination is alive and well in America—it simply takes a different form than it previously did. Employers and managers are less likely to pass over a person of color for promotion, or give a female employee a less desirable assignment. Instead, in an effort to demonstrate that the victim is unwelcome in the workplace, a manager or supervisor will, in essence, bully them. Unfortunately, it’s generally legal in almost every state.

To understand how bullying gets around discrimination laws, it’s important to know how a person seeks redress for discriminatory treatment in the workplace. Generally, anyone claiming discrimination must show that he or she was a member of a protected class under the law, a minority that has been afforded special protection, either because of race or ethnic origin, gender, disability or other legally designated qualification. It’s not enough to show that you have been subjected to discrimination—you must show that the discrimination related to your status as black, female, disabled, etc.

In addition, you must demonstrate that there was conduct by an employer that either involved discriminatory treatment, or had a discriminatory impact. The first requirement can be met if the victim provides evidence that he or she was treated differently than similarly situated persons. Discriminatory impact occurs when an employer enacts a general policy that disproportionately affects persons of a particular race, gender, religion, or other suspect classification.

With workplace bullying, employers typically engage in actions unrelated to a person’s gender, color, creed or status as disabled. Examples of bullying include persistent comments on the way a person dresses, how they wear their hair, the nature of their relationships, or the language they use on the phone or during work. An employer may spread baseless rumors about an employee’s personal life, or may consistently target a person for questioning, review or remediation.

Bullying can be overt or it can be subtle. An employer may simply neglect to timely respond to calls, e-mails or requests for information. An employer may offer little or no feedback on performance, then hit an employee with a negative performance evaluation. An employer may be denied notice or may not be invited to critical meetings, or the supervisor may engage in a campaign of micromanagement, with the implicit fear of job loss.

To date, only California has enacted legislation to address workplace bullying, requiring companies with at least 50 employees to provide training to management on improper workplace bullying. Many legal experts believe, though, that other states will follow suit, attempting to rein in bad behavior by bosses.

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