When Discrimination is not “Discrimination.”

Potential clients are incredulous, if not stunned, when we tell them that a boss who is nasty to some employees, even if on a daily basis, is not necessarily violating federal or state anti-discrimination laws.  In New York, an employer or his agent may verbally abuse subordinates with legal impunity as long as he does not single them out because they are members of a “protected class” (i.e., based upon gender/sex, age, nationality/race/ethnicity, disability or pregnancy).  So if, for example, a male Caucasian manager treats an older, female Hispanic employee “unfairly” and/or with outright animosity, a court may well conclude that he simply does not like that individual and not that he has discriminated against her because of her age, gender and/or background.   An employer’s rights in this realm may soon end, however, as New York is now considering an anti-bullying in-the-workplace statute.

One recent study shows that 35% of American workers have reported on-the-job bullying, most of which conduct was same gender harassment.  In 2003, California introduced the “Healthy Workplace Bill”, and since that time, some 21 states (including New York), have proposed, but have not enacted, similar laws.  In 2010, the New York State Legislature introduced an anti-bullying bill which passed in the Senate (45-16), but was tabled in the Assembly.  In early 2011, an identical bill was introduced in both Houses and it is currently under consideration.

The new bill would amend New York’s Labor Law to allow employees who are subjected to an “abusive work environment” to seek legal redress.  It defines “abusive conduct,” as “conduct, with malice, taken against an employee by an employer or another employee in the workplace, which a reasonable person would find to be hostile, offensive and unrelated to the employer’s legitimate business interests.”  A single act would not be sufficient unless it is “especially severe or egregious.”

The bill requires workers to notify their employers of the abusive conduct and employers to eliminate the abusive conduct without retaliating against individuals who participated in the complaint process.  An employer can defend litigation by demonstrating that it exercised reasonable care to prevent and promptly correct the abusive conduct and that the employee unreasonably failed to take advantage of preventative or ameliorative opportunities.  It cannot utilize this affirmative defense however, if the abusive conduct culminated in the complainant suffering an adverse employment decision, but the employer can assert that any such decision was consistent with its legitimate business interests.

A successful claimant could see the offender’s employment terminated, and she could recover lost wages, medical expenses, attorneys’ fees, compensation for emotional distress and punitive damages, and she could gain reinstatement.  In situations in which the complainant was not fired, demoted, reprimanded or otherwise penalized, her emotional distress damages could be no greater than $25,000 and she could not obtain punitive damages.  Finally, if the claimant collected Workers’ Compensation benefits for conditions arising out of an abusive work environment, she could not also bring a claim under the new law.

It is unclear, of course, as to how this new law, will affect workplace dynamics and relationships. One thing is certain, however: if the law is passed, it will create a very furtive area for litigation.