The Beginning of the End of Workplace Discrimination?

The United States Supreme Court is soon to decide when employees must act if they want to file suit for workplace discrimination. Private sector workers typically have 180 days to report job discrimination to the Equal Employment Opportunity Commission (EEOC) whereas public sector employees must do so within 45 days. In the case to be heard by the Supreme Court, a postal worker claims that he was passed over for a promotion because he is black. When he complained about this to his employer, the United States Postal Service, he was allegedly forced to choose between retirement or a lower-paying job 300 miles away. He resigned and filed a lawsuit, but missed the EEOC deadline. The trial and appellate courts disagreed as to when the statute of limitations should start to run, which would have made a difference in the case.

As the law currently stands, however, employees only enjoy legal protection against discrimination based on a relatively narrow range of issues such as age, gender, national origin, race, religion or disability because of Title VII of the Civil Rights Act. But luckily, times are changing for the better. Although employees in this country enjoy notoriously few of the rights and work norms that are taken for granted in so many other parts of the industrialized world, some states are doing something to change this situation, at long last. In California, for example, AB 2053 now requires California employers with fifty or more employees to add training in the prevention of “abusive conduct” to already existing training requirements regarding sexual harassment.

“Abusive conduct” is that which a “reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. It may include repeated infliction of verbal abuse … that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” The conduct must be undertaken with malice. In other words, the California law targets a wide range of workplace bullying that is not linked to traditional types of discrimination. But such conduct is surprisingly common and accepted by management to a surprisingly great extent in more places than you might think. Between 25% and 50% of working Americans have current or past experience with abusive conduct at work. Bosses still constitute the majority of bullies, but colleagues also often harass each other. 72% of employers deny, discount, rationalize or even defend the bullying conduct. Not surprisingly, 92% of respondents of one survey support the enactment of a Healthy Workplace Bill.

The effects of bullying are severe both for the employee and the organization. For the latter, loss of productivity may be as high as 40% when workers are distracted by bullying.  A British survey suggests that as much as 10% of a company’s profits may be lost due to bullying. Additionally, organizations may suffer from high employee turnover, poor reputation, and legal and rehabilitation costs.

Victimized employees will typically suffer from a host of severe stress-related physical and mental health issues some of which may even turn lethal. Additionally, employees may experience severe career and financial problems if they are forced out of their jobs because of intolerable workplace harassment and have to take a less desirable position, potentially in a less desirable location. Families will, of course, suffer from these issues as well.

Unfortunately, the California law does not yet have sufficient legal “teeth,” as defining “malice” and the bullying targeted by the law is difficult. Thus, in spite of the extent of the problem and its many recognized and severe consequences, if you have an issue with your employer, you will still typically have to rely on help from your local human resources department. In countries where trade unions are more prevalent and acceptable than in the United States, employees can often also get good practical and legal help from that angle. That gives employees some leverage and bargaining power that is hard to obtain on one’s own.

So, what happens if a human resources department is disinterested in or for other reasons—corporate acceptance of workplace bullying, perhaps—unwilling to assist you if you are bullied at work? Perhaps not much, as the situation stands. But just as the Civil Rights movement started some place and built up at least some protections against some types of discrimination, modern notions of what constitutes workplace discrimination and its negative effects are, luckily, spreading. In spite of the usual initial criticism, AB2053 is a very good start. Undoubtedly, the common law will be able to shed further light on what modernly constitutes acceptable workplace behavior and what does not. That way, the law can get the required legal “teeth.” In the meantime, it is a sad observation about the modern American workplace that so many managers effectively tolerate or even undertake workplace harassment and that so few counterbalancing institutions in place in other cultures exist here, for instance trade unions. In contracts law, it’s all about the bargaining power. Most American workers have too little in today’s workplace.

A version of this article originally appeared on ContractsProfBlog.

Featured image courtesy of Pixabay.