Mark PestronkQ: My partner curses at employees and belittles them in front of other employees. One of our employees has threatened to quit and sue for harassment, claiming that my partner is creating a hostile work environment. The employee claims that the hostility has caused extreme stress and physical illness, and I suspect that she is telling the truth. My industry colleagues say that I need to watch out, as such bullying could create liability. Can an employee or ex-employee sue for bullying?

A: Contrary to popular belief, the general rule is that an employee or ex-employee cannot successfully sue for a "hostile work environment," "harassment" or "bullying," no matter how severe, unless the employer has also engaged in discrimination based on gender, race or other protected employment classification.

The terms "harassment" and "hostile work environment" entered the human-resources lexicon late in the last century as part of civil rights law. As you probably know, those laws protect employees from discrimination. Somehow, the quoted terms have become uncoupled from civil rights laws, and there has arisen a popular belief that all such activity by employers is illegal. This misunderstanding is now widespread.

Under federal, state and local civil rights laws, the only harassment that is illegal is activity that singles out members of a protected class, if its purpose or effect is to pick on members of the class. For example, it is illegal to discriminate against minorities in the workplace by making racial slurs or against women by making lewd comments.

Under federal law, employment discrimination is illegal if based on gender, race, religion, national origin, age, disability, military membership or veteran status. The law generally applies only to businesses with 15 or more employees.

At the state or local level, most jurisdictions make the federal anti-discrimination laws apply to all businesses, no matter how small. Also, in some jurisdictions, it is illegal to discriminate based on sexual orientation, marital status, political affiliation, criminal record, prior psychiatric treatment, citizenship status or personal appearance.

Even if the harassment is completely intolerable and would lead any rational employee to quit, the ex-employee still cannot successfully sue without proof of discrimination on the grounds of membership in one of the groups covered by these laws.

Finally, the ex-employee needs evidence that she was discriminated against or harassed because of her gender and not because of poor performance or other objective, bona fide, job-related qualification.

There is one exception to my general rule that you need proof of discrimination before you can sue for harassment. If an employment contract prohibits the employer from discharging the employee without cause for a fixed term, and if harassment creates a hostile work environment amounting to a fundamental and intolerable change in working conditions, then such harassment can be deemed a kind of discharge, thus enabling the ex-employee to sue for wrongful termination.

Unless your employees have long-term, no-cut contracts, I would call your problem a human-relations problem, not a legal one. Something must be done about the workplace harassment, but the law does not provide a solution.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].

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