The Legal Differences Between Sexual Harassment And Workplace Bullying

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We speak with David Yamada, a professor and the founding director of Suffolk University Law School's New Workplace Institute, about some of the legal differences between sexual harassment and workplace bullying.

Deborah Becker: Is bullying in the workplace illegal?

Generic workplace bullying, unfortunately, is not illegal in the Massachusetts workplace. The behavior that's associated with what we call protected class status, in this case allegations of sexual harassment, could well be legally actionable under employment discrimination laws. However, what we call sort of generic workplace bullying — yelling and screaming bosses, attempts to undermine someone's reputation or sabotage their work performance. Those types of behaviors, however hurtful, typically fall between the cracks of current employment laws.

What does the law say about bullying versus sexual harassment?

If somebody has been subjected to a hostile work environment on the basis of sex, which is usually in the realm of sexually oriented behaviors, comments, jokes, ridicule, then we're into the area of sexual harassment law and workplace discrimination.

However, if the behavior is not filled with that kind of content, that it's screaming at small mistakes or perceived mistakes, ongoing forms of verbal abuse, behind the back attempts to sabotage someone's reputation, that's what we're talking about in terms of workplace bullying. And unfortunately, that's the behavior that oftentimes is not within the reach of current employment protections.

Is there in your research a relation between those two things, sexual harassment and bullying?

Absolutely. If you look at workplaces where there are high levels of sexual harassment or high levels of workplace bullying, you are likely to find the other present as well.

Now you've drafted legislation that would define and try to curb workplace bullying. And about 30 states are considering it, including Massachusetts. What would that legislation change in a case like this?

It would provide severely bullied workers with a civil claim for damages if they can show that they have been subjected to an abusive work environment that caused mental or physical harm. So in a way, it sort of tracks current laws concerning sexual harassment, but it takes it a step further by saying that regardless of whether or not the behavior is motivated by someone's sex or race or disability or age, that no one should have to be subjected to an abusive work environment.

Are you concerned at all that when there is a lot of attention to something like this that some people could file complaints frivolously, though, and get swept up in what some might call hysteria? And we may shift too far?

That's always a risk whenever you create new workplace protections, that somebody is going to look at it and say, "Oh, you know this gives me an opening." As for the sexual harassment end of things, you know we have these laws in place. And while it's possible that some might be abusing them, the bigger story, as we're seeing, is that so many targets of this behavior, despite the legal protections, have remained silent out of fear for repercussions and consequences to their careers and reputations. I think we should still be looking at why so many people have felt pressured to remain silent in the face of abuse that is already protected by the law.