The Case

A recent case from Alaska and the Ninth Circuit illustrates the importance of detecting and eliminating bullying behavior in the workplace. It also offers guidance on how to minimize the risk of harassment claims.

The executive director of a teachers’ union was abusive toward both male and female employees. The testimony indicated that his conduct was more abusive toward women and that his behavior, which he argued was gender-neutral, was more objectionable to women. The court ruled on whether, in a sexual harassment case, it was relevant that conduct which was not itself about sex had a more objectionable effect on women than on men. The court ruled that it was, that a case of sexual harassment could be based in part on whether non-sexual conduct affected women adversely more than men.

By highlighting the sex-based effect of conduct that was not itself sex-based, the court’s decision provides a guide to minimizing the risk of such claims. Additionally, because the court had to mold sexual harassment principles around a fact situation that was in large part a case of workplace bullying, the decision illustrates the consequences of failing to shut down bullying behavior.

The Analysis

To be sexually harassing, conduct must be “because of … sex.” As the court wrote, “[T]here is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures….” The court focused first on the nature of the executive director’s conduct, noting, “The ultimate question … is whether ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'”

The Court then went beyond the conduct itself, to focus on the effects of the conduct: “Title VII is aimed at the consequences or effects of an employment practice and not at the … motivation of coworkers or employers….” [T]he ultimate question … is whether [the executive director’s] behavior affected women more adversely than it affected men.” When determining the differential effect of conduct on men and women, the Court stated that one must “consider what is offensive and hostile to a reasonable woman.” As the court wrote:

[T]his case illustrates an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men. There is no logical reason why such a motive is any less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.

Finally, the Court attempted to stitch together the inquiry into whether the allegedly harassing conduct was objectively different toward men and women with the inquiry into whether the conduct had a different effect on men and women: “We now hold that evidence of differences in subjective effects (along with, of course, evidence of differences in objective quality and quantity) is relevant to determining whether or not men and women were treated differently, even where the conduct is not facially sex- or gender-specific.” (Emphasis added.)

The Lessons

There are at least three clusters of lessons in this case for managing the workplace.

1. Curb bullies

If the conduct in this case seems unusual as a claim of sexual harassment, there is nothing unusual about it as a complaint about a bully. Bullying occurs in the workplace just as it does in the schoolyard. At work, the conduct often goes unchecked for a number of reasons, including the status of the bully as a manager or the record of the bully as a high producer. They are, in other words, often high performing, which provides a perceived disincentive for the organization to get tough; and they are also often adept at retaliatory politics, which provides a disincentive for individual managers to get tough.

The consequences of failing to curb bullying behavior, however, are substantial. There are effects on morale and retention with related productivity losses, and, as the case discussed above illustrates, bullies are legal claims waiting to happen. From a financial perspective, they are walking talking contingent liabilities.

• Organizational policies should be examined and brought up to date, including addressing bullying behavior.
• The culture of the organization should be reviewed, including how the organization uses rewards and punishments to assign value to different behaviors, and what types of behavior from an employee result in that employee’s manager being held personally—even financially—accountable.
• Employees who function outside the organization’s acceptable boundaries and behave contrary to legitimate organizational values should be reined in with discipline or discharge.

2. Become aware

Managers should be aware of the experiences of their employees in the workplace. Understanding those experiences can provide information about both the employees and also the employer, including strengths, weaknesses, and areas where energy and attention—of employee or employer—has drifted from the mission. If properly considered, knowledge of employee experience can drive more effective communications, operational processes, and employee relations. It can provide opportunities for an employer to take action before third parties step in.

• Push supervisors to engage in conversation with their employees. Maintaining boundaries appropriate for the workplace is critical, as is making every effort not to show favoritism. But the importance of keeping communication available, commonplace, and free from retaliation cannot be overstated.
• Undertake review procedures that allow employees to review their managers, environment, and employer. Then digest that information and act appropriately. See the note above on reviewing the culture of the organization.
• Put managers occasionally “in the field,” recognizing that they cannot get a realistic view of employee relations when they are holed up in their offices.

3. Be inclusive

Communicating expected standards of behavior is a necessary first step toward implementing organizational values consistently, and a necessary step as well to disciplining an employee for failing to meet those standards. Stereotyping by gender, ethnicity, or any other classification is unlawful, unnecessary, and counterproductive. Appreciating the range of cultural or gender norms can make communications more effective and operations more productive. Moreover, large portions of this nation’s eligible workforce have religious, ethnic, or other cultural backgrounds that differ from the group of white men that dominated the workplace as recently as one generation ago.

There is evidence that employees generally become more productive and flexible when managers have taken their views into account in the creation and implementation of personnel and operational policies that affect the workforce. Managers who have not learned to appreciate workplace diversity risk creating an organization that is out of step with the expectations of their employees, their future applicants, and, increasingly, the courts.