We are writing this post in order to explain better what workplace bullying actually means. You feel like you are bullied at your job but you are not sure how the law defines workplace bullying. 

Is it illegal?

Are you protected by the law?

We are here to help you better understand.

These laws are applied in the United States where the federal law protects employees in cases which we will describe below. In addition to federal law, most states have their own statutes related to discrimination in the workplace. The law applies to employers with 15 or more employees.

Now, you may be asking, what about employers with less than 15 employees? Well, since some states also provide more protections that go beyond those required under federal law, we advise you to check the law within your state regarding workplace bullying. You may even find that you are not protected by the law but that is not the sign to settle down with workplace bullying.

If you are not feeling comfortable at your job, there is a problem which needs a quick solution. Being in the office is a big part of your day, so your main focus should be finding a suitable environment where you will grow and have a piece of mind. 

The truth is that employees are often surprised to learn that bullying isn’t necessarily illegal. There are certainly ways to get your rights even when the law doesn’t protect you.

That being said, let’s dig into the work.

What is workplace bullying?

According to Legal dictionary:

Unwelcome or offensive behavior in the workplace, which causes one or more employees to feel uncomfortable, scared, or intimidated in their place of employment.

What do we have here:

• Unwelcome or offensive: If you feel unwelcomed or offended by anyone at your job. Even if you are not the person who is being bullied, you are feeling uncomfortable when you assist these scenarios, you are bullied.

• One or more employees: It doesn’t matter how many people are affected. Even if you are the only one feeling like that, you are bullied.

• Uncomfortable, scared, or intimidated: Any time you feel this way, there should be an alarm inside of you.

• Place of employment: This may be an office, or a trip to the fair, or company dinner party. Any place which is related to your job is the place of employment.

Is workplace bullying illegal?

As you may know, we humans are all very different. The same situation may be considered illegal by one group of people but legal by the other group of people. What do we mean by that?

Let us give you an example. 

Imagine an office with male workers. They chat and make jokes about blondes and women all the time. None of them is offended and it doesn’t make their work environment uncomfortable. In that case, there is no illegal action. 

But, let’s say the office assumes a woman for the position of secretary and they continue behaving in the same manner, and the woman starts feeling uncomfortable, that’s the beginning of the workplace bullying (even though the jokes are not pointed at her, she feels intimidated by their behavior and her work environment is broken). 

So, now we are talking about illegal workplace bullying?

Well, not yet. In order to get this behavior illegal and sanctioned by the court, the woman first needs to indicate that she is feeling uncomfortable. She may do this verbally or in written form to her supervisor or HR department. Only in case they do not react and protect her, she has the right to file the suit. 

When is workplace bullying illegal?

We tried to find solutions on the website of The U.S. Equal Employment Opportunity Commission (a federal agency that administers and enforces civil rights laws against workplace discrimination). If you are going to sue your employer, this agency is where you go to.

This is how workplace harassment is defined by law on their website:

Harassment is unwelcome conduct that is based on:

1. race, 
2. color, 
3. religion, 
4. sex (including pregnancy), 
5. national origin, 
6. age (40 or older), 
7. disability or 
8. genetic information. 

Harassment becomes unlawful where:

1) enduring the offensive conduct becomes a condition of continued employment, or 

2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. 

As you may see, neither federal law nor the law of any state prohibits workplace bullying outright. Workplace bullying is strictly defined by the law and it is based on protected characteristics, such as race, color, national origin, religion, sex, age, or disability. Workplace bullying is illegal if a person is targeted for having some of these characteristics. 

Basically, if your supervisor is bullying you only because you are a woman (for example, stating that you are lazy/stupid like every other woman) than you would have the right to file a suit. On the other hand, if he is stating that you are lazy/stupid (not mentioning that you are a woman and his behavior is typical, he says that to every worker) then you would not have the right to file a suit. Of course, this kind of behavior needs to be frequent and severe in order to be illegal and you need to communicate your discomfort to your employer first.

Petty slights, annoyances, and isolated incidents (unless extremely serious) are not illegal. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive.

So, every joke now and then is not considered illegal. But, when the jokes become frequent, then that kind of behavior becomes illegal.

It is important to mention that it doesn’t matter who makes the offense. It could be a manager, co-worker, or even a client or vendor. If the person’s conduct creates a hostile work environment, makes it difficult for an employee to work, or interrupts an employee’s success, it is unlawful.

Another important thing to mention is that victims of harassment may not be just the target of the offense, but anyone who is affected by inappropriate behavior. So, if somebody else is being bullied in your workplace, not you, but you feel uncomfortable in that environment, you are also protected by the law (if the conduct may be sorted in one of the categories above).

For the moment, only the categories listed above are protected by the law. Although a number of states have considered anti-bullying legislation, none has yet to pass such a law. 

Employees are encouraged to inform the harasser directly that the conduct is unwelcome and must stop. Employees should also report harassment to management at an early stage to prevent its escalation.

Let’s now describe each category and explain its meaning.

1. Is it illegal if a person is discriminated against because of race or color in the workplace?

Yes, it is. Race or color discrimination at work is illegal. It is illegal if your supervisor is treating you unfavorably because you are of a certain race (or because you have characteristics associated with that race, such as hair, skin color or facial features). The same goes for color discrimination – if your supervisor is treating you unfavorably because of skin color complexion, this is illegal too. 

It is illegal to treat someone unfavorably because the person is married to (or just simply associated with) a person of a certain race of color.

In any case, your employer should not treat you differently because of your race or color, or if you are associated with anyone with a different race or color. 

And, as we have stated before, the harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.

So, what does “unfavorable treatment” look like?

According to The U.S. Equal Employment Opportunity Commission, this unfavorable treatment may include offensive jokes, slurs, epithets or name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures and interference with work performance.

Examples of workplace bullying based on a race?

• A manager refuses to promote Asian males, even if he promotes other males and Asian females.

• An employer assigns a Black employee to work in a predominantly Black neighborhood because of his or her race. This is illegal even if the employer believes the employee will sell more products.

• A department store chain channels white employees to sales jobs, while Latino employees are placed mostly in restocking and warehouse positions.

• A delivery company refuses to hire Asian applicants as truck drivers only because the hiring manager believes Asians are poor drivers and more likely to get in accidents.

• A restaurant chain has many African American employees; however, the chain assigns lighter-skinned African Americans to wait tables and seat customers, while African Americans with darker skin are channeled to jobs washing dishes and busing tables.

Your employer should not base any job decision on your race or color. This includes decisions about hiring, firing, promotions, training, wages, and benefits.

It is illegal for your employer to punish you, treat you differently, or harass you because you reported discrimination. Even if it turns out that the conduct you complained about is not found to be discrimination. This is your right to be protected from retaliation.

To summarize, if you have suspicions that you are bullied at your work because of your race or color, you should gather evidence to support your opinion. It is needed to express your concerns to the employer first. In case they do not provide a better work environment, then you may proceed with filing a suit. Even if you decide to go to court, you will need to prove that your employer was discriminating against you because of your color or race. In some cases this is easy to prove, in other, it is very hard to prove. 

2. Is it illegal if a person is discriminated against because of religious beliefs in the workplace?

Yes, it is. Religious discrimination at work is illegal. Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism but also others who have sincerely held religious, ethical or moral beliefs.

This means you may be part of the big, well known religious group or have some own moral beliefs which need to be respected in your workplace. 

Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion.

And, as we have stated before, the harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.

So, what does “unfavorable treatment” look like?

For example, offensive remarks about a person’s religious beliefs or practices. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). 

Examples of workplace bullying based on religion?

• Deciding not to hire an applicant because he/she observes the Sabbath on Saturday

• Firing an employee for missing work due to a religious holiday

• Reassigning someone to a less public position because you think her hijab makes people uncomfortable

• Poking fun at a Muslim staff member who doesn’t eat pork

• Teasing employees or disciplining them for being out of dress code for wearing a religious adornment like a turban or yarmulke

• Refusing to allow employees to have religious symbols on their desks or at their workstations but allowing other personal items, like family pictures

• Forbidding an employee to swap shifts because he/she needs to practice his/her religious beliefs (when other workers are allowed to swap shifts)

To summarize, your religion may not be an obstacle in any part of the hiring process or working later on. You are advised to notify and discuss with your employer about any inconvenience your job is causing you. You should be aware that in cases where your absences or other request based on religion causes harm to the business (it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work), an employer is not obliged to give you permission. Work should be an agreement between the employer and the employee. We advised strongly people to talk to their supervisors or HR department when they begin feeling uncomfortable in their workplace.

3. Is it illegal if a person is discriminated against in the workplace because of their sex? 

Yes, it is. You are protected by the law and nobody is allowed to treat you unfavorably because of your sex. You cannot be discriminated in the workplace or during the job interview process. Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is also illegal and against the law. 

The harasser does not necessarily have to be your boss or supervisor. It’s still harassment if a coworker or client is the source of the behavior and the company’s management does nothing to put a stop to it.

Both men and women can be the target of sex discrimination. Either a man or a woman can be a harasser.

So, what does “unfavorable treatment” look like?

It may include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. It can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. We need to mention again, these behaviors need to be frequent and severe in order to be illegal (simple teasing, offhand comments, or isolated incidents that are not very serious are not illegal). 

Examples of workplace bullying based on a person’s sex?

• If a coworker asks you on a date, this is not harassment. But, if you refuse and he persists on asking you, continued asking can become harassment.

• If you have a coworker who is always sharing sexual anecdotes which makes you feel uncomfortable to work, this is harassment.

• If your boss is staring at you in a sexually suggestive manner and this type of behavior is interfering with your ability to perform, this is harassment.

• If your client is rubbing, or purposefully brushing up against you, this is harassment. 

To summarize, any actions or words with a sexual connotation that interfere with an employee’s ability to work or create an uncomfortable atmosphere are considered sexual harassment.

4. Is it illegal if a person is discriminated against in the workplace because of their national origin? 

Yes, it is illegal to discriminate on the basis of national origin. When an individual is treated differently because of the country where they were born, their ancestry, culture, linguistic characteristics (if common to a specific ethnic group) or accent, they have been discriminated against on the basis of their national origin.

So, what does “treated differently” look like?

As you may see, the national origin category is not only your origin but the whole aspect of your nationality. This includes your accent (many people in the U.S. have a different accent, you should not be mocked for that in your workplace), your culture (you may have some different customs which should be respected in your workplace), your country of birth (someone may state you are less worthy as a worker if you are a Mexican for example) or any other aspect of your nationality. 

As we stated before, the same as for the other categories, if you are married to or associated in any way with persons of a particular national origin and you are being bullied in the workplace because of that, you are protected by the law.

Harassment can include the use of ethnic slurs, intimidation, threats, mocking, and other verbal, written, or physical conduct.

Simple teasing, offhand comments, or isolated incidents that are not very serious are not illegal. Harassment is illegal when it is frequent or severe that it creates a hostile or offensive work environment.

Examples of workplace bullying based on a person’s national origin? 

• A Hispanic business owner who refuses to hire anyone other than Hispanics would be discriminating on the basis of national origin.

• A candy store that serves a predominantly white neighborhood refuses to promote an employee who has adopted a traditional African style of dress.

• A Chinese restaurant hires only people with Asian features and surnames to wait on customers.

• A supermarket store disciplines Latino employees more severely than white employees for tardiness.

To summarize, it doesn’t matter which nationality you are if you are being discriminated at your job or during the interview process because of your name, surname, accent, clothes, any national characteristic or if you are being discriminated against because you have certain relations with someone of different national origin, you are protected by the law.

5. Is it illegal if a person is discriminated against in the workplace because of their age? 

Yes, it is. Age discrimination involves treating an applicant or employee less favorably because of his/her age. But, this law protects only people who are age 40 or older. It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. 

This law is applicable to employers with 20 or more employees.

So, what does “unfavorable treatment” look like?

Harassment can include, for example, offensive remarks about a person’s age.

However, it can be difficult to determine whether an employer’s actions were motivated by age discrimination, or by a genuine belief that another person can perform a particular job better.

A valid reason other than age a company may use to justify the hiring of a younger worker is that the younger worker has less experience and lower salary history, and may be willing to work in the same job for a lower salary than the older worker. If the company bases the hiring decision on this reason, it is not illegal.

Examples of workplace bullying based on a person’s age? 

• A software company eliminates a job by changing the job title. You are told that your job is being eliminated but then a younger employee comes to work in the same capacity as you only with a different title.

• You seem to receive harsher criticism or discipline than your co-workers for similar issues or mistakes, this can be a subtle sign of age discrimination.

• Your employer says he/she will not promote you because you’re ‘too old’.

• Your employer offers a training course only to recent graduates, this could constitute indirect discrimination, as it could exclude older employees.

• Firing employees once they reach a certain age.

The goal of this law is to protect older workers. Many companies today tend to hire young workers considering the age of 45 old to work. This is a big deal since 45 is still very young. Especially the tech industry is starving for new-age employees and tossing out the old ones. This is an important issue and if you are reading this and you know someone or you are the person being bullied at work for being old, it is your duty to put a stop to it. 

6. Is it illegal if a person is discriminated against in the workplace because of disability? 

Yes, it is. If you have a disability and are qualified to do a job, there are federal and state laws protecting you from job discrimination. Disability discrimination also occurs when an employer treats an employee less favorably because he/she has a history of a disability (such as the illness of any kind). 

Also, you are protected if you are associated with a person with a disability. For example, it is illegal to discriminate against an employee because his/her husband/wife has a disability.

So, what does “unfavorable treatment” look like?

Harassment can include offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile work environment.

Examples of workplace bullying based on a person’s disability? 

• An employer disciplines a woman because she has had to take time off to care for her disabled child. He has not disciplined other workers who have had similar amounts of time off work.

• This would be counted as direct disability discrimination.

• During an interview, a job applicant tells the potential employer that he has multiple sclerosis. The employer decides not to appoint him even though he’s the best candidate they have interviewed, because they assume he will need a lot of time off sick.

• A job advert states that all applicants must have a driving license. This puts some disabled people at a disadvantage because they may not have a license because, for example, they have epilepsy. If the advert is for a bus driver’s job, the requirement will be justified. If it is for a teacher to work across two schools, it will be more difficult to justify.

There is one thing that is important to remember. If an employer is requesting a certain condition (as having a driving license which for example is not possible for some disabled people) that condition is a clue for you to know if you are being discriminated against or not. If the requested condition is essential for doing the job than you are not being discriminated against. On the other hand, if the condition is not essential for you to do the job, and you are turned down beacuse you do not have it, then we can talk about unlawful behavior. 

7. Is it illegal if a person is discriminated against in the workplace because of genetic information? 

Yes, it is. It is illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about your genetic tests and the genetic tests of your family members. Genetic information also includes information about any disease, disorder, or condition of your family members (your family medical history).

I was curious to find out why this law was passed in the first place to better understand its application. On the website of National Human Genome Research Institute I found this explication:

Many Americans fear that participating in research or undergoing genetic testing will lead to being discriminated against based on their genetics. Such fears may dissuade patients from taking genomics-based clinical tests or volunteering to participate in the research necessary for the development of new tests, therapies, and cures. To address this, in 2008 the Genetic Information Nondiscrimination Act (GINA) was passed into law, prohibiting discrimination by employers and health insurers.

Now everything is so clearer. In order to protect science and the research, you are also being protected by the law. Nobody has the right to submit you to unfavorable treatment because of that. 

So, what does “unfavorable treatment” look like?

Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee.

Examples of workplace bullying based on genetic information? 

On the website of  The U.S. Equal Employment Opportunity Commission we found this example:

Tamiko posts a picture on her Facebook page of her family participating in a recent cystic fibrosis fundraiser with a caption: “Here’s to finding a cure for cystic fibrosis-so my brother and others with CF can lead long, healthy, happy lives!” Tamiko’s supervisor overhears co-workers asking Tamiko about the event, cystic fibrosis, and how her brother’s doing. The supervisor researches cystic fibrosis and learns that it is an inherited condition and that some people may not experience symptoms until they are adults. The supervisor had been planning to promote Tamiko, but decides not to do so out of concern that Tamiko may develop cystic fibrosis and be unable to handle both a new medical condition and additional responsibilities at work. Tamiko’s supervisor discriminated against Tamiko based on genetic information if the supervisor denied Tamiko a promotion based on Tamiko’s family medical history of cystic fibrosis.

It is important for you to know that in some cases you employer is allowed to know your medical history if that kind of information is important for the job. But, the law requires that employers keep genetic information confidential. It imposes strict limits on when and to whom employers may reveal genetic information. And of course, they cannot use that information to decide about your promotions or other work advancements. 

What to do if you believe your rights have been violated

According to the American Civil Liberties Union:

Gather all the documents that might support your claim — emails, text messages, application forms, for example — and locate the people who witnessed the discriminatory conduct.

• Write down a timeline of events and all the facts that lead you to believe you were discriminated against.

• You can show that you’ve been subject to intentional discrimination by pointing to people of a different race, ethnicity, or national origin who received better treatment, or by pointing to actions by the landlord or employer that don’t make sense in the absence of discrimination.

• Figure out which government agency can take your complaint. This can be somewhat confusing because there are federal, state, and local agencies that may be able to help, and the process varies depending upon where you live. Start with the websites for the federal agencies: the Equal Employment Opportunity Commission.

• Your city or town may also have its own civil or human rights agency that can help.

• These agencies will ask you to file a description of your complaint with any supporting documents and conduct an investigation at no cost to you. Be aware that the time period for filing a complaint may be short. The process may result in monetary damages for you as well as the opportunity to be considered for the job or housing at issue, and it could require the employer or housing provider to change its policies going forward.

• You may also consider filing a lawsuit in state or federal court.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. We advise you to double-check the information cited above – preferably in government websites.

Reference: 

https://www.employmentlawfirms.com

https://www.upcounsel.com

https://www.thebalancecareers.com

https://www.workplacefairness.org

https://www.nolo.com

https://www.aarp.org

https://www.genome.gov

https://www.shrm.org