Jessica Westerman Differentiates between Workplace Bullying and Sexual Harassment

Katz, Marshall & Banks associate Jessica Westerman wrote an article for Bloomberg Law titled, “What is the Difference Between Workplace Bullying and Illegal Sexual Harassment?” As an extension of her piece for KMB’s Employment Blog, Ms. Westerman examined the history of the Civil Rights Act, and how Title VII applies to sex discrimination in the workplace.

Including “sex” as a protected class under Title VII was not in the original bill. It was only after it became clear that the bill had widespread support, did Representative Howard Smith of Virginia introduce a floor amendment to add sex as a protected class. While some believe that Rep. Smith offered the amendment as a “poison pill” to derail the entire bill, this story has been dispelled as a myth.

Title VII has evolved in the half century since the bill’s passage, but the main principle still stands: harassment is illegal under Title VII if it is “because of” sex. Workplace sexual harassment can manifest in many ways: a boss who treats the women in his office with contempt, and fails to treat all of his employees equally, or more commonly, harassment motivated by sexual desire. Unwanted proposals may constitute sex harassment since the behavior was motivated by sex, and would not have occurred had the victim been a different sex.

An “equal opportunity” jerk boss, while counterproductive to a healthy and functioning office, is not in violation of Title VII if he or she treats all employees similarly, although poorly.

States are looking into passing legislation that would make generic workplace bullying illegal. Massachusetts state Senator Jennifer L. Flanagan has introduced “An Act Addressing Workplace Bullying, Mobbing, And Harassment, Without Regard to Protected Class Status,” which may set a precedent for other states to follow.

For the full article, click here.