The Smell Of Freshly-Terminated Staff Hung In The Office Air

Is bullying the same as sexual harassment?  Is sexual harassment a form of bullying?  Or vice versa?

Is there a difference?

Fear, Domination, Bully, Victim

It does not occur often that the actions of a single man can illustrate several legal issues. But a Canadian employer (a Mr. McConnell) illustrates non-actionable bullying (at least in the US), as well as sexual and other actionable harassment.

The Manitoba Human Rights Commission represented employees at a financial services company, who, according to a news article in the Winnipeg Free Press, presented “overwhelming” evidence of workplace intimidation.

The “adjudicator” (i.e., judge) said that “the evidence was overwhelming that the workplace … was ‘volatile and intimidating. The company was very much Mr. McConnell’s petty kingdom.’  McConnell kept his staff on pins and needles in terms of job security, [the adjudicator] said.

‘The smell of freshly-terminated staff hung in the office air, and the threat of more firings always seemed to loom.”

Now this is a bully, no question about it!

But so far, nothing that was noted about this guy’s behavior is actionable, at least according to the law in virtually every US jurisdiction.   You may recall the immortal words of the late Justice Scalia who said (as only he could) that Title VII was not “a civility code” (so get over it, he left unsaid).

But wait …

Suit, Business Man, Business, Man, Male

As it turned out (as it often does with bullies), that our good friend McConnell had also “sexualized the work environment.”

The article pointed out that “[t]wo female employees claimed McConnell would ask to see something on their computer screens, then place his hand on their lower back.  ‘I am convinced that the gesture amounts to an objectionable and unwelcome sexual advance,’ [the adjudicator] said, even though the touching ‘was never described as rubbing or fondling.’”

He also made lewd jokes and racist remarks over a long period of time.

“Documented evidence was presented in the form of emails that involved sexual innuendo, images of scantily clad women, and racist jokes … A male complainant, Naseer Chaudhry, alleged McConnell made inappropriate comments about his Pakistani ancestry. Chaudhry said McConnell regularly referred to persons of Pakistani origin as ‘brown people’ and ‘your people.’ McConnell, Chaudhry said, attributed undesirable traits to people of that ancestry.”

“McConnell denied making the comments. However, another complainant claimed to overhear McConnell tell Chaudhry to ‘go back to your own f-g country.’”

Takeaway:  Unless and until there are anti-bullying laws, any uncivil or intimidating behavior in the workplace – unless covered by other laws such as, perhaps, dealing with battery or defamation, are not actionable unless the acts fall into or are directed against people in protected categories under, for example, Title VII, the ADA or the ADEA.

But that does not minimize the damage done by the likes of bosses like McConnell.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]