New workplace bullying decision: No protected class, no case

A new decision from the New York federal court nicely illustrates some points that we recently made about the issue of “bullying” in the U.S., and its interplay, if any, with the employment anti-discrimination laws.

The pro se plaintiff was a college lecturer who regularly complained “regarding the bullying and harassment by [his Department’s] current Chair.” He took his case to court after the Equal Employment Opportunity Commission found no violation of Title VII, but told the court “that he was not alleging that his Chair’s hostility was motivated by his race, sex, age, or national origin.”

See also: Context is key when addressing workplace bullying

On July 31 we posted that “If you take out the racial, sexual, age or other protected class aspect of workplace harassment and hostile work environment, you get, simply, bullying. There are no state or federal laws defining or regulating workplace bullying, and the civil rights laws do not cover it, since, as Justice Antonin Scalia stated in Oncale, Title VII is not “a general civility code for the American workplace.”

The federal court similarly held that:

“Bullying and harassment have no place in the workplace, but unless they are motivated by the victim’s membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, and any complaint to the EEOC based on them does not constitute “protected activity” under Title VII.

The court continued: “Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due. The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin.”

Do we need/want anti-bullying laws?

While the court was sympathetic to plaintiff’s plight, it nonetheless said that he “must look outside Title VII to secure what may be their fair due.” But what is outside Title VII that can help plaintiff?

Although no anti-bullying law exist in the U.S., more and more countries have taken up the issue — at least 25 have enacted such laws (see our post about Australia), and experts and pundits are increasingly raising the issue.

See also: Workplace bullying issues a worldwide concern

On Feb. 25 we posted a comment from Professor David Yamada of Suffolk University Law School, and director of the New Workplace Institute, the author of template legislation that serves as the basis of most of the workplace anti-bullying bills introduced across the country. He told us that “I can attest that the need for such legislation is underscored by the terrible inadequacy of existing law, including tort claims (IIED) and other causes of action…the template bill, a/k/a The Healthy Workplace Bill, sets a relatively high threshold for recovery, higher in fact than hostile work environment standards for sexual harassment. In other words, it’s about creating a cause of action for abuse, not incivility.”

Richard B. Cohen is a partner at Fox Rothschild’s New York City office. To contact the author: rcohen@foxrothschild.com. This Legal Alert is not intended to be, and should not be construed as, legal advice for any particular fact situation.