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How To Delineate Workplace Bullying and Sexual Harassment in the Workplace

In today's litigious society, complaints of workplace bullying and harassment are on the rise. Harassment allegations must never be taken lightly, and any behavior that creates a toxic work environment should be addressed. However, not all harassing behavior creates a legally actionable offense.

Having a clear understanding of your legal rights and responsibilities as an employer is your first step to effectively addressing inappropriate workplace behavior.

Understanding Sexual Harassment

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment of employees or applicants for employment. This covers an array of actions including:

  • Unwelcome sexual advances

  • Physical harassment that is sexual in nature

  • Verbal comments that are sexual in nature

  • Requests for sexual favors

  • Being fired or demoted due to gender

  • Offensive remarks about people of a certain gender

If incidents are isolated or considered simple teasing, there may not be a problem. Sexual harassment becomes an issue when it's frequent or the person subjected to the behavior feels it creates an offensive or hostile work environment.

Sexual harassment can come from someone of the same or opposite sex and victims can be of either gender. Anybody within a company can be a harasser or a victim, including employers, supervisors, co-workers, subordinates, clients, and customers.

When sexual harassment occurs in the workplace, employers can be held legally liable for failing to stop or prevent the behavior. In most cases, the individual responsible for the harassment is not subject to any legal penalties.

Workplace Bullying

Bullying in the workplace may include behaviors like demeaning an employee or coworker, shouting, making threatening gestures, and other inappropriate and rude actions. While certainly not a recipe for a successful business practice, these behaviors aren't currently prohibited by law.

This has been coined as the "equal opportunity jerk" theory. A boss or coworker can bully all employees with inappropriate behaviors and there is no legal standing for retribution as long as the behavior remains gender-neutral. Even if an individual employee is singled out and bullied, there is currently no legal recourse unless it was based on gender or sexual in nature.

State Legislation

With the absence of Federal laws governing non-sexual inappropriate workplace behavior, some states are taking steps to pass legislation to address the matter. The state of Massachusetts is leading the way with Senate Bill 1013. This bill would prohibit general workplace bullying that is severe enough to negatively impact a victim's physical or mental health.

If the bill is passed, it's likely that other states may follow suit. Employers should keep an eye out for law changes in all states where business is conducted.

Best Practices

When it comes to best practices for your business, this is a case where just because you can, it doesn't mean you should. There are many reasons why any type of toxic behavior should be prohibited in the workplace. However, understanding the laws can help you avoid unwarranted threats and appropriately deal with problems on a case-by-case basis.

There are some circumstances where a zero-tolerance policy is necessary. Other times, you may have the option to counsel the offender and work towards mandated behavior changes. Having this flexibility will allow you make the best decisions for your long-term business success.

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