The following is an article written by Jessica Westerman that appeared in Bloomberg Law, as an extension of her blog for KMB's Employment Law Blog.
Not all employees who face bullying in the workplace have actionable sexual harassment claims against their employers. Screaming bosses, coworkers who intentionally undermine one another’s successes, and supervisors who set what seem like impossibly high standards can make for an objectively “hostile” work environment. But under federal employment discrimination laws, only employees who are bullied or harassed because of their sex can assert claims for sexual harassment against their employers.
This discussion is limited to contrasting bullying and sexual harassment, but the same analysis would apply to distinguishing workplace bullying from racial harassment or harassment on any other basis covered by the anti-discrimination statutes, such as national origin, religion, age, or disability.
About Title VII and “Sex”
Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against employees on the basis of sex not only in making any employment decisions, but also with respect to the “terms, conditions, or privileges” of their employment. 42 U.S.C. § 2000e-2(a). Discrimination affecting the “terms, conditions, or privileges” of one’s employment has been interpreted to include creation of a “sexually hostile work environment,” which is a legal term of art, through severe or pervasive sexual harassment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To constitute discrimination on the basis of sex, actionable sexual harassment must be directed at the victim “because of” her (or his) gender.
As federal courts have affirmed on many occasions, Title VII is not “a general civility code” that prohibits “all verbal or physical harassment in the workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). Rather, it was designed specifically to protect from discrimination Americans who were historically marginalized within, or totally excluded from, the workplace. This includes women who, long excluded from the workplace altogether, endured pervasive and unaddressed sexual harassment in previously male-dominated places of employment.
The dearth of legislative history surrounding the addition of “sex” to Title VII fueled the popular myth that southern civil rights opponents introduced a “sex amendment” to derail the law’s passage, rather than to provide women with a remedy for workplace discrimination. The myth has since been deployed to discount the problem of sex discrimination in the workplace and the legitimacy of Title VII as a vehicle for combatting it. There is no question that the primary aim of Title VII was to eradicate discrimination on the basis of race. But the inclusion of sex in Title VII was the result of concerted and savvy lobbying efforts by feminist and women’s groups long before the law’s passage, and it was an integral part of the bill that eventually became law.
The representative who introduced the amendment adding “sex” to Title VII’s list of protected traits, Representative Howard Smith of Virginia, had in fact voted in favor of the Equal Rights Amendment (ERA) every year since its introduction in 1923, and was in conversation with leaders of the National Women’s Party (NWP), the ERA’s primary proponent, as early as 1956. Jo Freeman, How “Sex” Got into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 Law & Inequ. 163, 171 (1991). The NWP passed a formal resolution that the proposed civil rights bill be amended to include sex as a protected trait on Dec. 16, 1963. Less than one month later, Representative Smith told the House Rules Committee he was considering offering such an amendment. With public opinion strongly in favor of civil rights legislation and Title VII likely to pass both houses of Congress, Representative Smith introduced a floor amendment to add “sex” to Title VII’s list of protected traits on February 8, 1964. After a “thorough air[ing]” of the principal arguments for and against the amendment, it passed the House of Representatives 168-133. Carolyn L. Wheeler, Women’s Work Is Never Done, 36 St. Louis U. Pub. L. Rev. 56, 74 (2017).
As our understanding of gender and sexuality evolved over the late 20th and early 21st centuries, Title VII’s “sex” protections were interpreted to extend to all employees, men as well as women. This includes both male and female employees who endure sexual harassment by members of the opposite, or the same, sex. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998). Because Title VII only bans discrimination on certain protected bases, however, it does not protect employees who are bullied or harassed for reasons other than their sex (or one of the other traits listed in the statute).
Harassment “Because of Sex”
To constitute actionable harassment under Title VII, workplace bullying must be “because of” sex. When it comes to distinguishing sexual harassment from generic workplace bullying, the “critical issue” is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring). There are several ways to demonstrate that workplace harassment is “because of” sex within the meaning of Title VII. First, and perhaps most commonly, conduct that is motivated by sexual desire, such as unwelcome romantic or sexual advances, may constitute actionable sexual harassment. Since this type of conduct presumably would not be directed toward a member of a different sex, one can infer it was “because of” sex.
But bullying or harassing conduct need not be motivated by sexual desire to be “because of” sex. Workplace harassment that is motivated by a “general hostility to the presence of” one sex or the other in the workplace, or is based upon an employee’s failure to conform to stereotypes about how members of their sex should look or behave, may constitute actionable sexual harassment, too. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). In other words, bullying or harassment that would not otherwise be directed at an employee of the opposite sex likely constitutes actionable sexual harassment.
Some ways that workplace bullies create a “sexually hostile work environment” through severe or pervasive sexual harassment include making unwelcome romantic or sexual advances, making constant sexualized jokes or comments, using gender-based slurs, and consistently treating one sex worse than the other in a mixed-sex workplace. For the reasons described above, bullying that is unconnected to an employee’s sex is not actionable under Title VII.
About Equal Opportunity Jerks and Other Bad Bosses
Two common examples of workplace bullying that do not give rise to a legal claim for sexual harassment are what has become known as the “equal opportunity jerk” and employers who single out a particular employee for reasons other than his or her sex.
As the theory goes: A supervisor who bullies all of his or her employees using gender-neutral language or tactics is not in violation of Title VII because he or she treats men and women equally poorly. For example, in Acosta v. Hilton Grand Vacations Company, LLC, Civil Action No.: 4:15-cv-00495, (D.S.C. Mar. 30, 2017) (slip copy), a female employee’s supervisor “had a reputation of being rude to everyone, regardless of the individual’s gender[.]” Although the supervisor’s comments toward and interactions with the employee were “rude and inappropriate,” they were no different than those directed at male employees and did not in themselves reflect “bias or . . . animus based on . . . gender.”
Similarly, employers who single out a particular employee still may not be in violation of Title VII if the employee is singled out for some reason other than his or her sex (or one of the other protected traits listed in the statute). For example, a supervisor who bullies an employee because of a personality conflict or disagreement over the way work should be done is not in violation of the law. Supervisors frequently offer harsh criticisms to their subordinates, call them stupid or incompetent, rail at them for mistakes, shout at them, or make threatening physical gestures toward them. However harmful the supervisor’s words or behavior may be, they will not be grounds for a sexual harassment claim under Title VII, as long as they are not based on the employee’s sex.
What Laws Exist to Stop Workplace Bullying?
In the absence of federal legislation prohibiting generic workplace bullying, several states are considering legislation that would provide severely bullied employees with a claim for damages if they can prove that they suffered mental or physical harm as a result of the bullying. For example, Massachusetts State Senator Jennifer L. Flanagan introduced Senate Bill 1013, “An Act Addressing Workplace Bullying, Mobbing, And Harassment, Without Regard To Protected Class Status,” in the Massachusetts Legislature in January 2017. Specifically, the Act prohibits all “abusive conduct” against employees—even if the conduct is not based on one of the protected traits enumerated in Title VII, such as sex. In fact, the Act expressly distinguishes sexual harassment from more general workplace bullying, which lawmakers estimate is four times more prevalent than sexual harassment alone.
Although workplace bullying and sexual harassment often go hand in hand, only one is actionable under existing federal law. Unless and until states pass anti-bullying laws like the one under consideration in Massachusetts, employees’ ability to assert claims against their employers for workplace bullying will be limited to harassment on the basis of sex or one of the other protected traits enumerated in Title VII.