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The Warshawsky Law Firm Blog

Monday, September 15, 2014

Workplace Bullying Is Not Illegal Unless It Is Motivated By The Victim's Membership In A Protected Class

Workplace bullying is a too common experience for too many employees, whether blue collar or white collar, hourly or salaried, administrative, technical, or professional.  As an employment lawyer, I frequently am called and emailed by people who have been bullied at work by coworkers, supervisors, and/or managers and who want to know their rights.  Unfortunately, unless the bullying was motivated by the victim's membership in a protected class, the victim essentially has no "rights" under existing federal, state, and city employment laws.

This important issue -- one that most people are not aware of -- was highlighted in a decision issued today by the U.S. District Court for the Southern District of New York (SDNY) in the case of Alfred Johnson v. City University of New York, No. 14-CV-587 (Hon. Valerie Caproni).  The plaintiff in Johnson was a lecturer in the music department of CUNY's Medgar Evers College.  He alleged that, for more than three years, he had been "bullied" and "harassed" by his department chairman.  After complaining about the bullying, first to the college and then to the U.S. Equal Employment Opportunity Commission (EEOC), his appointment was not renewed, which he alleged was retaliation for his complaints. 

The plaintiff then filed a lawsuit against CUNY, representing himself (pro se), in which he charged the college with wrongful discharge, failure to hire, failure to promote, and retaliation.  However, he did not allege that this mistreatment was based on his race, sex, age, national origin, religion, disability, or any other protected characteristic.  At a court conference, the plaintiff confirmed to the judge that "he was not alleging that his Chair's hostility was motivated by his race, sex, age, or national origin."  Consequently, the judge granted CUNY's motion to dismiss the lawsuit.  The judge explained the basis of her ruling in the opening paragraph of her decision:

"Bullying and harassment have no place in the workplace, but unless they are motivated by the victim's membership in a protected class, they do not provide the basis for an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (Title VII), and any complaint to the Equal Employment Opportunity Commission (EEOC) based on them does not constitute 'protected activity' under Title VII.  Victims of non-discriminatory bullying at the workplace, like those treated unfairly for reasons other than their membership in a protected class, must look outside Title VII to secure what may be their fair due.  The Court does not condone bullying, but it cannot read Title VII to protect its victims unless the bullying reflects discrimination based on race, color, religion, sex, or national origin."

The key point is that Title VII and other employment discrimination laws -- including, for example, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law -- only protect employees from mistreatment that is motivated by one or more of their protected characteristics.  The term "protected characteristic" refers to certain physical and social traits that are deemed by the law to be unrelated to a worker's occupational abilities, including age, sex/gender, race/color, national origin, religion, marital status, pregnancy, disability, and sexual orientation.  Importantly, different laws protect different characteristics.  For example, just about every law prohibits race and sex discrimination, but only the state and city laws prohibit sexual orientation discrimination.  A qualified employment lawyer will know which laws potentially apply in each particular situation.

The bottom line is that, for a victim of workplace bullying to be able to sue in court, the bullying must have been motivated by the employee's protected characteristic(s).  This is because the employment discrimination laws only protect against certain kinds of mistreatment, specifically defined in each law.  These laws do not protect against bullying, harassment, hostility, meanness, and unfairness in general.  Unfortunately for the plaintiff in the Johnson case, this means that his lawsuit against CUNY was doomed from the start.  Judge Caproni had no choice but to dismiss the case. 

If you or someone you know has been the victim of workplace discrimination, please contact The Warshawsky Law Firm today.  





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