All too often — and it seems to be increasing — I am asked to defend employers against charges or lawsuits alleging “hostile work environment.” Nothing more. Something is missing from these claims — the allegation that the hostility was caused by the plaintiff’s legally protected trait or activity; for example, “My supervisor is hostile toward me because I’m female and he doesn’t like women” or “I made a sexual harassment claim against him, and now he’s retaliating against me.”
The U.S. Supreme Court has from the beginning cautioned the courts that Title VII is not intended to be a “code of civility”; instead, it’s intended to prohibit and punish discrimination based on a handful of legally protected traits — traits Congress has determined merit strong legal protection because of historical bias against persons born into those classes, and the debilitating effect it has had on American society generally (including economic performance).
The caution against the code of civility misinterpretation, however, is being lost in the workplace. Lay persons routinely think it violates their civil rights if someone simply isn’t nice to them. This attitude has complicated origins but, no doubt, the increase in legally enforced civil rights in society generally, and our society’s emphasis on Constitutional protections, combined with the ever-present misconception that the Constitution actually applies in the private sector — it doesn’t — explains it in part.
There are other factors at play. For example, give a person legal rights, but without fully educating him about what they mean, and he inevitably will misinterpret their scope. And we have a lot of those persons in the United States. (Before you mistake me for Rush Limbaugh, this happens across the political spectrum — from workplace “activists” to Second Amendment zealots.)
Another factor that amplifies this effect is that many of us — too many — have little or no real control over our lives; we work, shop, eat, sleep, then work some more (if we’re lucky). There are few opportunities to exert real control. One of those places is the workplace: “I have employment rights that you can’t take away from me, and I will stand up to you.” It’s like the obnoxious guy who drives 60 mph in the fast lane. He does it because he can, because it’s one of the few places he can actually exert control, and, oh, yeah, because it’s not against the law. (It’s still obnoxious.) The essentially powerless man is invested with the power of the law in a sliver of his life. American highways now are the great equalizer — the purest form of democracy left in the world. That attitude carries into the workplace as employees exit the highway and pull into the employer’s parking lot, and it is augmented by the proliferation of workplace rights.
One final observation about the cause of this: We all have heard about, and experienced, the decline in civil discourse in America — rigid views; refusal to even try to understand different opinions; the loss of ability to compromise; and ever harsher public words. One example is Rush Limbaugh’s vile and inexcusable tirade against the female Georgetown student simply because she has a different opinion. Everything that happens in American society at large makes its way into the workplace, and fast. Whether the concept of civil rights, the scourge of illegal drug abuse, or the loss of civility, it will affect the workplace in short order. And that’s because a company is, at base, a group of people, not a legal entity. If that group of people is imbued with legal rights, ignorant at some level about how they work, feel somewhat powerless in their personal lives, and live in an increasingly uncivil society, no one should be surprised about the increase in employees alleging they are victims of an undefined “hostile work environment.”
Guess who gets to take care of this complicated mix? Human Resources. Yet, I also see HR personnel confused about what is and isn’t unlawful. When HR personnel are confused about this, they end up treating what actually is lawful conduct as being unlawful conduct. That reinforces the employee’s misperception that their rights have been violated, and probably increases the chance those employees will motor down to the local EEOC office to file a charge. The result is a lot of misguided claims alleging “hostile work environment.”
The concept of individual rights empowers the individual — that’s the point. And a large part of what I describe is to be expected from our messy democracy, and it is good and healthy in many respects. But it also results in the problematic employee. Giving them a civics lecture rarely works. Instead, their education is through the legal process. The problem is that it is an expensive educational process for employers.
Americans love their rights. And, our legal rights and our fearsome protection of them are two fundamental reasons — maybe the fundamental reasons — why we’ve thrived historically and why this still is such a good place to live. But, of course, there are limits to government-backed rights. Congress recognized this explicitly in the debates over Title VII in 1963-1964. There was much compromise, and a balance had to be struck in what the law would prohibit and how it would be accomplished. If it had been too far-reaching, it would have been resisted even more than it was. A law that over-reaches loses legitimacy. That’s why the Supreme Court cautioned very early that Title VII is not a “code of civility”; there are limits to what change a law can effect. If we forget that, we risk undermining the law altogether.
This doesn’t mean we should lament the growth of civil rights or condone incivility in the workplace. I am convinced beyond doubt that without Title VII the United States would be a second world country today. I am equally convinced that it’s the bad employer that tolerates a work environment without respect for the thoughts of co-workers — but they aren’t violating employment laws if they do, because that’s beyond the scope of the law. (Those employers will, however, experience lower productivity and increased legal expenses, and suffer in the marketplace. Those employers also are a defense lawyer’s dream, as long as they can pay their bills.)
So, how is the “hostile work environment” misconception to be addressed? Although it’s a tired refrain, it begins with employee training. First, training this generation of HR personnel about what is and isn’t unlawful conduct. Then, that has to be pushed through the organization. It’s not as harsh as it sounds: the message is simply, “Let’s get this straight – this is what the law prohibits, but being a jerk isn’t against the law. Still, if you’re being mistreated, in your opinion, we’ll nip it in the bud because it’s against our performance code. But it’s not a legal issue, and there won’t be a full blown investigation.” The employer becomes the educator. It’s good for the organization. And, it’s cheaper than paying me to defend your “hostile work environment” claims.
About the author
Sam Fulkerson is a labor and employment attorney with the McAfee & Taft law firm. His practice is focused on the representation of management in all phases of the employment relationship, including litigation before federal and state courts, regulatory and administrative agencies, and in arbitration matters. He also handles litigation matters involving the enforcement of non-competition and confidentiality agreements, breach of employment contracts, handbook and personnel policy violations, wage and hour disputes and other disputes arising out of the employment relationship.
Sam has extensive experience in mediating and arbitrating employment disputes before the American Arbitration Association and other alternative dispute resolution organizations. He also has successfully represented employers in ERISA-based lawsuits against third-party administrators for misuse of employer funds, and against insurers for bad faith denial of employer claims under medical excess loss policies.
In addition to litigation matters, Sam assists employers in developing employment policies and arbitration programs, and with preventive training for both management and hourly employees. He also routinely advises employers on hiring, discipline and termination, severance and reduction-in-force matters.
Sam lectures frequently on employment law topics in Oklahoma and elsewhere, including for the University of Oklahoma Center for Continuing Education, the Oklahoma Bar Association, the U.S. Court of Appeals for the Tenth Circuit Annual Seminar and the Southern Methodist University School of Law Multi-State Labor and Employment Law Seminar. Sam also has published scholarly articles in the Oklahoma Law Review and the Society for Human Resource Management Legal Report, and he was the primary author of “Age Discrimination in the Workplace: A Primer for Human Resource Professionals,” Society for Human Resource Management (1999).
Sam is the designated representative of McAfee & Taft as the exclusive member firm representing Oklahoma in the Employers Counsel Network, a nationwide affiliation of leading law firms providing legal assistance and representation to employers. He is also co-editor of the Oklahoma Employment Law Letter, a monthly review of new court decisions, regulations and laws that affect state employers.
His achievements have earned him inclusion in Chambers USA Guide to America’s Leading Lawyers for Business, The Best Lawyers in America (labor and employment law) and Oklahoma Super Lawyers. He also served as the leader of the firm’s Labor and Employment Group for five years.