Ask Your Lawyer

ASK YOUR LAWYER
by: Scott D. Soldon

WHAT IS WORKPLACE HARASSMENT?

The confusion over harassment claims arises because people use the word "harassment" to mean different things.

I. Harassment As Inequality Between Labor and Management

Examples:
"My supervisor is harassing me."
"It's hell to work here."
Employee really means "I resent that my supervisor is constantly watching me." or "Management treats us like animals, not people."

Neither situation constitutes "harassment" as defined in federal or state anti-discrimination laws. Neither constitutes a grievance or violation of a collective bargaining agreement. Management definitely has the right to watch employees closely at work to ensure that they perform their duties and do not engage in misconduct. There is no implied right to be "left alone."

The relationship between union and management is one of constant struggle over power, money, etc. See the following examples of arbitration decisions: United States Steel Corp., 49 LA 101 (Dybeck 1967) (furtive supervisory activity and observing employees from concealed locations is permissible, even in a case of entrapment in which management leaves "bait" and maintains surveillance to see if employee takes it); FMC Corp., 46 LA 335 (Mittenthal 1966) (upholding use of secret video recording devices by management as a means to prevent theft or other misconduct); Hobart Mfg. Co., 62 LA 1285 (Kabaker 1974) (upholding use of secret video recording devices to monitor employee productivity); Sun Drug Co., 31 LA 191 (Marcus 1958) (upholding use of illegally-intercepted audio communication in arbitration).

In these situations, the employee is using "harassment" to describe the inequality between workers and management, which is simply not preventable.

II. Harassment As Personal Vendetta Unrelated To Protected Classes of Employees

Contrast:
"My supervisor is harassing me."
Employee really means "My supervisor is watching my work more closely than other employees because he doesn't like me."

"It's hell to work here."
Employee really means that personality conflicts make work unpleasant.

Neither situation constitutes "harassment" as defined in federal or state anti-discrimination laws. Neither one likely constitutes a grievance or violation of a collective bargaining agreement, although the first may be if your collective bargaining agreement contains the right provisions (see Article 37 of the UPS contract). If the behavior is threatening, it may violate criminal statutes. Our system of government guarantees the right to pursue happiness. There is, however, no general right under federal or state law to be happy or to be well-liked by one's peers or bosses.

In these situations, the employee may be using "harassment" to describe the normal stresses of everyday life, or the occasional unpleasant behavior of a fool. This may be annoying, but not unlawful.

III. Harassment That Constitutes Illegal Discrimination

Contrast:
"My supervisor is harassing me."
Employee means that supervisor is demanding sexual favors, or requiring employee to join a religious group as a way to discriminate on the basis of, for example, sex or religion.

"It's hell to work here."
Employee means that others are trying to drive him or her out of the workplace by making it intolerable on account of race, sex, religion, or disability, etc.

These situations constitute a violation of federal and state law, the collective bargaining agreement and (probably) various criminal statutes as well. The employee is describing serious acts of discrimination prohibited by law.

IV. Summary

In summary, employers are free to manage (or to mismanage) their businesses and employees. This generally includes the right to closely observe and monitor employee conduct on the job.

The Union can ensure that the employer does not violate the law or the contract by illegal, discriminatory behavior or by singling out employees for unfair or harsh treatment.