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California Employment Law Commentary on Issues Facing California Employers

The meek shall inherit their own protected category

Posted in Employment Litigation

I’ve posted before about how, in the employment context, harassment is only unlawful when it has a discriminatory motive or effect.  In other words, as the Supreme Court has observed, the anti-discrimination laws weren’t intended and shouldn’t be used as a "general civility code."

All that would change with the adoption of laws purporting to address workplace bullying.  Such legislation was recently passed by the New York State Senate and similar legislation has been considered in California and elsewhere (although nothing seems to be on the legislative docket here now).

No one is suggesting that abusive behavior should be tolerated at work or anywhere else.  If employers are aware of such behavior, they have a right, a duty, and a business justification to stop it.  But as long as people are working together there will be conflicts.  And you don’t need too many conflicts before one or more of the parties involved starts portraying themselves as a victim.  I don’t think anyone would question that workplace bullying laws will lead to more litigation.  Yet there’s plenty of room to dispute whether it will result in any actual change in workplace behavior.

[As a postscript, no blog post on this topic would be complete without acknowledging Michael Fox, who has been blogging about this issue since before most of us knew what a blog was.]