When employees claim that someone is harassing them, we occasionally hear “he does that with everybody – he’s an equal opportunity harasser.” That defense only works in certain circumstances.
In a recent Alabama federal court case, former hotel manager Vickie Thrower claimed that another manager created a hostile work environment based on gender and race. She claimed that he questioned everything she did, that he had “trust issues” and that he frequently shouted and swore at her.
What Exactly is Harassment?
Thrower was terminated for performance reasons that the employer contended were unrelated to the claims of harassment. She then sued for discrimination and harassment based on gender and race.
The word “harassment” is among the most overused in the American workplace. Employees apply it to a vast spectrum of concerns, from the trivial or illogical (“My supervisor keeps harassing me by making me return from breaks on time”) to grave accusations of intimidation or physical harm.
In the legal world, “harassment” has a rather precise meaning, which the Equal Employment Opportunity Commission (EEOC) articulates as unwelcome conduct based on an employee’s legally protected classification (e.g. race, age gender) where:
– enduring the offensive conduct becomes a condition of continued employment, or
– the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
How Can “Equal” be Discriminatory?
This is where Thrower’s claim failed, according to the judge. The employer contended, and the judge agreed, that the, manager in question was just a nasty person who was abusive to everyone, even his superiors. In fact, the company had received complaints about the manager from virtually every employee, including both men and women, and employees of every racial grouping working at the hotel.
The critical issue, however, was that there was no evidence that the manager ever directed any offensive sexual or racial comments to Thrower (or anyone else). All of his negative attention was focused upon her job performance, and Thrower could not demonstrate that male employees or those of different races were treated more favorably. Therefore, Thrower failed to prove that her work environment was hostile with respect to her protected classifications and her claim was therefore dismissed.
In reality, the manager in this case was not an equal opportunity harasser because, in the legal sense, he was not a harasser at all. He was just a miserable guy who made everyone around him miserable in exactly the same way. This must be contrasted with the employee who might utter racial epithets toward minority employees, perpetrate sexist behaviors toward women and engage in stereotyping of people in various other protected categories.
Such an individual may mistreat all co-workers equally as bad and equally as often but is unlikely to be viewed in the same manner as the manager who escaped liability in the Thrower case. Instead, he (or she) will probably be considered to have fostered a number of separate hostile work environment claims based on race, gender or any other protected classification that may have been targeted. The only equal opportunities created here will be for employment lawyers to take their shot at suing the employer on behalf of clients whose work environments became poisoned by illegal racial, sexual and/or other illegal forms of harassment.
Even though the manager in the Thrower case was absolved of illegal harassment, his behavior was nonetheless problematic. Imagine the disruption caused by a manager who is so relentlessly abusive that virtually every employee feels compelled to file a complaint. If the behavior is severe enough, those employees could consider other forms of legal action, such as a claim for intentional infliction of emotional distress, which has been recognized in Minnesota for more than thirty years.
In addition, there is a national movement seeking adoption of the Healthy Workplace Bill, a uniform anti-bullying law that has been introduced (but not yet passed) at various times in 32 different states.
The notion that a manager is an “equal opportunity harasser” that does not generate liability may occasionally allow an employer to slip past a discrimination claim. However, it is hardly a comforting doctrine for an employer and steps should be taken to insure that it is a defense that you never have to use.