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What Does Case Law Say About Harassment and Bullying?

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I have gotten several questions lately about harassment and bullying in the workplace. Some think of bullying and harassment as synonymous, but there are actually some key differences.

Actions are considered "harassment" when they call out an individual's protected class. More specifically, the U.S. Equal Employment Opportunity Commission (EEOC) defines harassment as any form of discrimination or unwanted conduct based on an individuals protected class, such as race or color, religion, sex (which includes pregnancy), national origin, age (40 or older), disability, or genetic information. While people can be bullied based on their protected class, bullying can include all kinds of emotional, verbal, and physical abuse. In addition, harassment is handled by the EEOC, while bullying is not.

There is a very fine line between bullying and harassment. This was evident in Wasek v. Arrow Energy Services, Inc., in which a Michigan court ruled that what looked to be a case of sexual harassment was actually bullying. Let's examine this case further...

The Society of Human Resource Management (SHRM) provides a thorough description of the case on their website (for those with SHRM access). In summary, "Walter," a Michigan resident worked for Arrow Energy Services on an oil rig in Pennsylvania. After a few weeks on the job, Walter's roommate and coworker, "Otto," an ex-felon, began directing sexual comments at Walter and touching him inappropriately. Walter asked Otto to stop, which resulted in an argument that was broken up by their supervisor. When Walter later complained to the supervisor, he was told to "stop whining and duke it out."

After other occurrences, Walter quit his job. He was told by Arrow Energy that they were upset with his decision and that he would "never work in Pennsylvania again." Walter shared his issues with Otto again, and played a voicemail that Otto left for him saying, "I miss you. I miss holding you. I love you." No resolution was found, so Walter sued Arrow for sex discrimination and a hostile work environment.

The SHRM case summary continues:

"Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any employee on the basis of sex. It is possible for men to bring sex discrimination claims under this law; the mere fact that both victim and perpetrator are men does not invalidate a claim...The U.S. District Court for the Eastern District of Michigan noted, however, that Title VII was not intended to function as a code of general workplace civility. It does not prohibit all verbal abuse or unwanted touching, only abuse and touching that occur because of sex or one of the other protected categories listed by the law...Walter's only evidence that Otto's conduct was based on sex was his belief that Otto might have been bisexual and desired him sexually. The court was more inclined to believe that Otto was a bully and had chosen this line of attack because Walter was sensitive to suggestions that he was gay; it was not convinced that Otto had targeted Walter specifically because he was a man. It dismissed Walter's lawsuit."

The decision was appealed to the US Court of Appeals Sixth Circuit and was awaiting a ruling as of April 17, 2012.

What does this mean for talent managers in education?

This case shows that the evolution of equal employment is still occurring and that EVERY HR person, regardless of industry or certification, needs to stay up-to-date on not just strategic practices, but the law. Talent managers also need to work with their organization's leadership to develop policies for monitoring, reporting, and alleviating cases of harassment and bullying. They also must ensure staff members are aware of these rules and procedures. Harassment can be difficult to discuss, but addressing the issue is critical to ensuring a safe, comfortable, fair, and enjoyable work environment in schools and building a culture of success for educators and students.

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