What do you do when the following happens: you have a female employee who has reported that her male boss is condescending and mean to her. The employee says that she cannot work for the supervisor any more and wants you to do something about it. She is threatening to sue your company for harassment. A common reaction is panic: you do not want a harassment suit against your company. You ask around about the supervisor and find out from your other employees that he is a jerk by all accounts, but that he treats all employees badly: male/female, white/minority, all age groups, etc. So it is clear this is not just one employee or the fact that she is a female. Does the employee have a valid harassment complaint? Probably not.
Employees use the term harassment in several situations and many are under the misconception that if someone in the workplace is mean to them, they can sue for harassment. This is not always the case. Employment laws such as Title VII of the Civil Rights Act, the Illinois Human Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act, to name a few, only address actions taken against another because of their race, age, gender, disability, religion, sexual orientation, national origin, etc. The most common harassment is sexual harassment. If one of these protected categories is not at issue, the mere fact that one employee is a jerk to another in the workplace, even if it is the boss that is being the jerk to one of his/her subordinates, does not necessarily mean the employee can sue for “harassment.” There is no law against being a bad boss or an unpleasant person. The law only protects against an outwardly bigoted or sexist boss.
There are also laws prohibiting a physically hostile work environment, but this requires either actual violence or threats of violence against an employee. The courts will not get involved in the management of an organization absent extenuating circumstances, such as the discrimination laws listed above or some other situations where there is some form of financial or bodily injury.
That is not to say that a company should not address an individual such as the bad boss. While it is not yet illegal to be a bully in the workplace, an employer does need to think about what type of negative impact the bully is having in its organization. Bullying leads to lower morale, higher absenteeism and lower productivity. In addition, with workplace violence on the rise, an employer must take bullying seriously. If an employer ignores signs of violent tendencies in one of its employees and that employee ends up hurting others, the employer can be faced with a negligent hiring or negligent retention lawsuit to defend – the theory being that the employer was on notice of the employee’s violent tendencies and did not remove or sufficiently remediate the violent employee before others were hurt. If the offender is a supervisor, then the employer is much more likely to be liable for acts of violence (as well as discrimination) against subordinate employees.
Legislation has been introduced to prohibit bullying in the workplace in several states, but to date no such legislation has been passed in Illinois. Despite that fact, employers should be engaged and know what its workplace environment is like. Is the workplace respectful, a place employees enjoy coming to work and are allowed to be productive assets to the organization? Or is it a workplace where the employees dread coming to work out of fear that they will be subject to some sort of torment? Of course, there also will be the occasional employee who is overly sensitive and easily offended by behavior that would not be objectionable to the reasonable person. Knowing what is and is not “harassment” will help you counsel your employees when having issues with their fellow workers.
• Kelly A. Cahill is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. A longtime Crystal Lake resident, Cahill devotes most of her practice to employment law and to municipal and local government law. Cahill serves as a municipal attorney for the village of Algonquin. She also acts as counsel to the planning and zoning boards of the cities of McHenry and Genoa. Her email address is firstname.lastname@example.org.