What’s the difference between a tough manager who demands high performance, and a manager who harasses employees? Sometimes very little, but it’s a good idea to err on the side of caution.
Earlier this year, the BC courts awarded an LCBO manager $183,000 in pay and damages for wrongful dismissal after she was fired for her abrasive management style. The manager, who had a 30-year history with the company, had been promoted many times, and had an exemplary employment record until early 2010, when one of her employees made a written complaint of bullying and intimidation.
The judge hearing her wrongful dismissal case ruled that the manager was a tough boss, prone to swearing, but her performance reviews were outstanding and her record unblemished until the complaint that led to her dismissal in May 2010. He also noted that she was part of a male-dominated workforce where profanity was common and that she had never been warned that her conduct was unacceptable.
For every case like this one, there’s another case where a manager’s behavior crosses the line in a way that the courts deem to be harassing, and it’s difficult to determine where that line is.
Legal and Practical Perspectives
- Is the behavior targeted at an employee of a protected class?
- Is the employee offended by the behavior?
- Is the behavior sufficiently severe or pervasive to create a hostile or abusive work environment?
- Does the employer have and enforce policies intended to prevent unlawful harassment?
- Did a tangible adverse job action result from or accompany the manager’s treatment of the employee?
- Is the manager a senior officer of the company?
- Did the affected employee complain?
- Would a reasonable employee be offended by the behavior?
“From a practical perspective,” says Hannum, “a jury may decide that the behavior is unlawful just based on whether or not the jury likes the manager and the way he treated his employees.”
Does Intention Matter?
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In addition to the likeability of the manager in question, court decisions might be influenced by the intention of the behavior.
“Any reprimanding of employees, whether public or private, should be done with the goal to help the employee learn how to improve him or herself,” says Asher Adelman, founder and CEO of eBossWatch, an online career resource for evaluating employers and job candidates. “The employee should feel like they are being coached in a supportive and respectful manner. Yelling at an employee is unnecessary under any circumstances and only contributes to a deterioration in the work environment,” he adds.
Equal Opportunity Jerk
Even more importantly, a manager should treat all employees consistently to reduce the risks of lawsuits.
“If the manager’s behavior is rude and overly harsh to everyone, then you have what we call the ‘equal opportunity jerk’ defense,” says Hannum. “The manager is a jerk to everyone, so there is no unlawful harassment of women or minorities, etc. The problem with this defense is that if a jury thinks the manager was a jerk, then the jury is likely to rule against him, and his employer, regardless of the law.”
In addition, a manager rarely yells at everyone, says Hannum. “Most often, he yells at the one or two worst employees, or most difficult employees. And if they are older, or female, or minority, or disabled, or of a particular religion, or have recently complained about some protected legal right in the workplace, then the risk of a claim of harassment (or a related claim of retaliation) increases dramatically.”
So, even if humiliating or yelling at employees is intended only to motivate employees to do their jobs better, it is an inherently risky management style and best avoided, says Hannum.