As I’ve said before, there’s a difference between a hostile work environment and a work environment that’s hostile. In the employment law context, it’s not enough that you have to deal with rude and obnoxious people at work. (For purposes of this discussion, we can ignore the fact that your obnoxious coworker will hire a more obnoxious lawyer to argue that he has an etiquette recognition disorder that has to be accommodated under state and federal disability law.) To have a claim for a hostile work environment, you need to be subjected to abuse in the workplace because of gender or race or age or some other protected category. That’s because the laws against harassment are part of the laws against discrimination in general. So harassment in the workplace is illegal when it’s a form of discrimination.
A California state court of appeal decision earlier this month, Kelly v. The Conco Companies, illustrates this distinction. Kelly, a male apprentice iron worker, was barraged with sexually demeaning comments and gestures and physical threats from a male supervisor and male co-workers. This included frequent use of the “f-word,” calling him a bitch, telling him he had a “nice ass,” and an array of more graphic suggestions that you can read about in the opinion. (We’re trying to be one of the few kid-friendly management-side California employment law blogs.)
In many respects, the facts are similar to Oncale v. Sundowner Offshore Services, Inc., a 1998 Supreme Court decision that addressed when male-on-male harassment was actionable. Drawing on Oncale, the California court reiterated that the laws against discrimination were not intended to become a “general civility code for the American workplace.” Absent that evidence, the court ruled that Kelly could not proceed with a sexual harassment theory.
Employers have reason to be thankful any time a court recognizes that bad behavior isn’t always legally actionable. The concern now is whether proposed laws against “bullying” will be used to create the feared “general civility code for the American workplace.”