The topic of “bullying” is very timely, with campaigns underway to make bullying at school or at work illegal, and there is even a movie that was made about bullying. In the employment law arena, often the concept of bullying is confused with the concept of hostile work environment. The reason for this may be that sometimes employees think that a hostile work environment exists if one of their supervisors or co-workers is “hostile”– i.e., threatening, mean, loud, obnoxious, sabotaging, manipulative, etc. This is an incorrect but understandable definition of “hostile work environment.” For better or worse, there is no law stating that a supervisor or co-worker must be civil, cooperative, nice, etc. There is no law forbidding them from being mean or manipulative. A supervisor is legally allowed to be a “jerk” or a bully, to everyone or even to a certain individual or a group of individuals that he just doesn’t like.

If a supervisor is harassing or retaliatory towards one individual or a group of individuals based on their legally protected status, such as race, religion, gender, sexual identity, age, or disability, then a case of discrimination could exist. And “hostile work environment harassment” exists when an employee is subjective to unwelcome and harassing conduct based on the employee’s protected status. The circumstance could be that co-workers tell sexually offensive jokes and/or show sexually suggestive photos to an employee based on her gender, or a group of co-workers tell racially offensive jokes around an employee based on his race. These situations represent conduct that could rise to the level of hostile work environment if it is not only subjectively offensive to the employee but also objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.

Courts look at a variety of factors to determine whether the actions are severe and pervasive, but suffice it to say that a one-time off-hand comment by a co-worker is likely not enough to create a hostile work environment. Rather, the treatment must be ongoing or sufficiently dramatic enough to rise to the level of illegal conduct.

What can an employee do if she believes she is being bullied at work? Sadly, nothing, unless the bullying is based on an illegal reason. For instance, if the employee is being targeted for something she did this is protected or encouraged under the law– organizing a union or exercising her union rights (even talking to other employees about working conditions, pay policies, or union rights); filing a worker’s compensation claim or filing or participating in a discrimination claim; reporting safety or fraudulent violations by the company– then the “bullying” is illegal as it is in fact retaliation. If the employee is being made fun of due to his race to an extent that it affects his work environment and his job contributes to the activity, it is a hostile work environment. If a boss gives an employee a negative evaluation and treats him badly because he won’t date her or sleep with her, then “quid pro quo” harassment is at play. Or if a supervisor picks on and adversely affects an employee because of the employee’s religion, then it’s discrimination. On the other hand, an employee who has a supervisor who is simply being a “bully” for no other reason than to be a bully is not involved in a hostile work environment, nor does he have an otherwise actionable claim.

Further reading: US Dept. of Labor: What You Need to Know About Workplace Harassment