The federal court of appeals in New York recently addressed a claim by a female employee that she was subjected to a “hostile work environment,” which we know is a viable claim of sexual harassment if the employee can show (in the words of one decision) “that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.”
The key word here is “discriminatory” intimidation, ridicule, and insult. The recent decision in Vito v. Baush & Lomb Inc. reminds us that “workplace bullying completely detached from any discriminatory motive” is not harassment under the civil rights laws.
Moreover, this decision reiterates that to rise to the level of a hostile work environment, behavior must be more severe than a “minor annoyance,” that “all employees experience,” or “sporadic” abusive language or jokes, which although “no doubt irritating, inappropriate, and offensive,” may be insufficiently “severe.”
The moral of this decision is not that an employer can rest easy if “mere bullying” occurs, but that since there is no bright line which separates a “minor annoyance” or “sporadic” harassment from behavior that a court will deem discriminatory harassment, best practices dictates that an employer tolerate NO bullying of any sort, and have a “zero tolerance” policy in place (preferably in writing) which forbids any type or manner of abusive behavior in the workplace, no matter how minor.