It’s Not Illegal to be a Jerk

Workplace harassment applies only to protected classes and protected activities.

Posted by Dawn Lomer in Harassment, Human Resources on August 25th, 2011

Just because a manager is grouchy and barks orders doesn’t mean his or her employees are victims of workplace harassment. And it doesn’t mean they are operating in a hostile work environment, no matter how much it may feel that way. For harassment to exist, the victim must be a member of a protected class, says Thomas Simeone, a Washington, DC, trial attorney and partner at Simeone & Miller.

“There is no definitive definition of ‘hostile work environment,’ but generally it is a work environment that is offensive to an employee on account of a protected trait (race, sex, national origin) or protected activity (exercising union or medical rights),” he says.

“It can include anything from use of racial or sexist words to physical touching and violence. In general, it does not include rudeness of a supervisor, stress due to long hours, or other types of unpleasant work situations not related to a protected trait or activity.”

What’s Protected

The difference between harassment and illegal harassment, therefore, is the element of protected class or activity.

“Most workplace harassment is not illegal,” says Florida employment attorney Donna Ballman. “Many employees have the mistaken belief that, if they are being harassed by their employer, a supervisor, or a co-worker, or they are in a ‘hostile work environment,’ that they automatically have a claim against the employer. This is simply not the case.”

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Ballman explains that the only types of harassment or hostile environments that are illegal are due to:

  • Race
  • Age
  • Sex
  • Religion
  • National origin
  • Color
  • Disability
  • Pregnancy
  • Genetic information
  • Having objected to illegal activity
  • Having taken Family and Medical Leave
  • Having made a worker’s compensation claim
  • Testimony under subpoena
  • Special categories, such as taking domestic violence leave, marital status, having a firearm in your vehicle, or having engaged in activity that is otherwise protected by a statute.

“If your boss is just a jerk or abusive, that is not illegal,” she says.

Reporting Harassment is Crucial

Ballman adds that employees often simply quit without reporting harassment to their employers. When they do that, they may be giving up their right to sue.

“The United States Supreme Court says that, where an employer has a published sexual harassment/discriminatory harassment policy, the employee must report it under that policy and give the employer the opportunity to fix the situation,” she says.

It’s imperative that employers take accusations of harassment seriously. “Once they are on notice, they will be held liable if they allow it to continue,” says Ballman. “And most employers know that this behavior is disruptive, has nothing to do with making money, and can adversely affect morale.”

Employers who take no action after receiving a harassment complaint are treading on dangerous ground. By reporting their inaction to EEOC, the employee can put it on notice that this behavior is occurring. “The employer will have no excuse when the harasser does it to the next employee,” says Ballman.


Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.