Good Advice for Employers: "Legalities aside, workplace shouldn’t put up with hostility."

A recent employment advice column in the Boston Globe dealt with the question of what to do about an abusive manager who “has a rather difficult personality and is prone to yelling and publically criticizing his staff.” The heading to this column read, “Legalities aside, workplace shouldn’t put up with hostility.” In this column is an important lesson for employers, in that it may not always matter what the law is in a particular situation, if the environment for workers is one that affects morale. But is the letter of the law all that’s important?

A manager writes the weekly “Job Doc” column with the following query:

I am the operations manager for a small manufacturing business. We recently hired a new department manager who is extremely qualified technically, but has a rather difficult personality and is prone to yelling and publically criticizing his staff. Production levels for the department have never been higher, but the new manager’s approach has clearly had a negative impact on department morale. There have not been any formal complaints, but I suspect it is only a matter of time. What are the company’s legal obligations when this happens? If the situation continues, might the company get sued for having a hostile work environment?

(See Job Doc column of March 19, 2006.) The Job Doc authors are Beth Kelly, president of HR Alliance Group, an HR consulting firm, and Thomas M. Ciampa, who runs Ciampa & Associates, a law firm representing employers and executives in employment law matters. Neither one are individuals you would expect to be pro-employee, given their perspective, which is why their response was noteworthy.

They start by reminding us that “[m]uch to the disappointment and genuine surprise of many an employee, there is presently no law against mean bosses, or even bosses who single out certain employees for particularly bad treatment, so long as the bad treatment is not discriminatory, i.e., based upon or due to the employee’s membership in a protected class.” That’s a speech that all employee advocates have had to give more times than they can count: with our present system of “at-will employment,” it’s simply not against the law to be a jerk at work.

So ordinarily that might end the manager’s inquiry: the operations manager who wrote in doesn’t have to worry about the new manager’s conduct violating the law, assuming that he’s not selecting employees to yell at due to their race, color, religion, national origin, sex, age (over 40), sexual orientation, ancestry, genetic information, and disability. (Those are the categories under Massachusetts law that are protected — check our site’s filing a harassment claim page to see what’s covered in your state.)

There’s one little quibble I have with their advice: they say, “Employees who are not members of a protected class cannot be victims of a ”hostile work environment.” That’s not exactly true: we all have a race, a sex, a national origin, a sexual orientation, a disability status, etc., even if we’re members of the majority. A straight white male might not ordinarily think of himself as a member of a protected class, but if he’s being persecuted because of his race, sex, and/or sexual orientation, he could be a victim of a hostile work environment. But aside from this, their advice in this column seems pretty sound.

The Job Docs go on to say, “However, just abiding by the legal definition of a ”hostile work environment” will not necessarily prevent the company from being sued for discrimination.” Why is that? Because “[o]ften, mistreated employees perceive that the mistreatment results from their being members of a protected class, even when this is not the case. These employees will sometimes file lawsuits alleging that their employer has discriminated against them. If the claim is properly pled it can be extremely costly to defend.” Now the Job Docs are sounding a little more pro-business.

They go on to note, “Indeed, defending a lawsuit of this type, even a frivolous one, can cost an employer tens of thousands of dollars in legal fees (if not more), as well as countless hours of lost productivity while company employees meet with counsel, develop information in response to written discovery, and appear as witnesses for deposition.” Employers should worry about abusive bosses, because they can cost the company money in defending lawsuits, even frivolous ones.

They conclude by saying, “Given the substantial cost of defending litigation of this kind, employers are well advised to weigh both the benefits and potential costs of allowing managers to act antagonistically, and to endeavor to treat their employees even better than they are required under the law.” (Emphasis mine.) Hear that, employers? Focusing just on the letter of the law may not help that much when it comes to litigation, if employees perceive they’ve been treated unfairly. How much litigation could be avoided if employers were to go just a little above and beyond what they’re legally required? How much lost productivity and declining morale are the result of managers acting antagonistically, who may not technically be violating the law, but nonetheless cause significant problems in the workplace?

While we at Workplace Fairness certainly care about the law (with 150+ pages of content advising employees about their legal rights), we also care about fairness. We applaud managers like the one who wrote Job Doc, who recognized a problem, and was concerned about making things right before the situation got out of hand. We also applaud those who take the Job Doc’s prescription to “endeavor to treat their employees even better than they are required under the law.” If every employer did that, we probably wouldn’t need so much law, lawyers and litigation, and there would be a lot more workplace fairness. And it would also probably cost employers less money — how’s that for a win-win?

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.