As an employment litigator and the co-chair of my firm’s Women’s Initiative, I have been particularly interested in the press surrounding the claims brought by Ellen Pao against her former employer.  As explained in a prior post, Pao claimed that she was harassed by male colleagues, and when she complained about that harassment to Human Resources, was retaliated against and ultimately terminated.  She brought claims of sex discrimination and retaliation, and a San Francisco jury vindicated the employer and dismissed her claims.

This saga illuminated several of the themes that I often address with clients when conducting harassment prevention training.

First, to be unlawful, conduct must be “severe or pervasive,” unwelcome, based on sex, and have an adverse impact on the work environment.  As of this year, harassment prevention training must cover abusive conduct aka “bullying” (defined as conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests).  Put simply, just because the conduct isn’t unlawful, doesn’t make it right.

Second, retaliation claims are very easy to bring and very hard to defend.  While the employer here was ultimately successful, keep in mind that it took a 24 day jury trial for that vindication.  Quite often retaliation claims are fact intensive and not susceptible to summary judgment or prompt resolution.

Third, even if harassment claims fail, it is quite possible for a retaliation claim based on a meritless harassment claim to succeed.  And unfortunately, many managers do retaliate against employees who complain, albeit sometimes inadvertently.  In my training, I always include examples of a manager who was frustrated with an employee who complained about something, and takes actions that could be construed as retaliatory (such as ignoring pleas for help, letting others give the complaining employee a hard time, and/or directing opportunities elsewhere). Managers need to be trained to not only avoid retaliation, but also the appearance of retaliation.

Fourth, defending a harassment, discrimination, or retaliation claim can be a very high hurdle for employers, who need to essentially justify their actions by picking apart the plaintiff’s behavior.  That requires a very delicate balance.  In reviewing how Pao was expertly cross-examined, I cheered for the female attorney who scored such good points for her client.  At the same time I was saddened for women who honestly believe they are stepping up to expose institutional problems that others are too afraid to raise.

And finally, the press accounts of the Pao trial indicate that there is unconscious bias in the workplace.  Semantics matters, such as referring to a woman as someone with “sharp elbows” – would anyone refer to a man that way?

All in all, there are lessons here for everyone.  Let’s just hope employers (and employees), female (and male), take a minute to digest them.


Michael Fox has been writing his blog — Jottings By An Employer’s Lawyer — for over a decade. Throughout that time, he’s been vigilant in opposing "anti-bullying" legislation for the workplace. It’s not that he likes bullies (although he did threaten to take my lunch money if I didn’t plug his blog). It’s that he realizes what a morass it would be if every employee could describe an unpleasant reaction with a co-worker or supervisor as "bullying." Read his latest observations on this topic here.

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.]