Not everything that is unpleasant in the workplace is also illegal. Moreover, the nation’s anti-discrimination laws were never meant to impose a code of civility on the workplace. Yet there is a qualitative difference between focusing on workplace equity versus focusing solely on legal compliance, and this can come through in your company’s atmosphere. Should you care?
Yes. Even if your sole interest is legal compliance, you should still make an effort to promote workplace equity and non-discrimination. This may save you in the long run by promoting retention and morale, and it may also prevent something that is merely unpleasant from growing into something you could be held liable for.
Suppose you have an ‘equal opportunity’ offender
Sometimes, even workplace bullying is not illegal, even if it is harmful and unwelcome. This is because our anti-discrimination laws only protect people from being discriminated against or harassed based on characteristics protected by state or federal law. Characteristics protected by federal laws include:
- National origin
- Sex/gender, including homosexuality, gender nonconformity and transsexualism
- Age (40 and over)
- Disability status
- Veteran status
You could read that to mean that you are free to “discriminate” or harass people based on other characteristics, or for reasons unrelated to these characteristics. However, this may lead to behavior your organization does not wish to tolerate.
We often see the “equal opportunity offender” — someone who makes cutting remarks or bullies employees on a “non-discriminatory” basis. This person may be obnoxious or even hostile to other employees, but seemingly not in connection to their protected characteristics.
Yet, as the U.S. Supreme Court found in a recent ruling, the “equal opportunity offender” may actually be discriminating. For example, the “equal opportunity offender” may fire a woman for being insufficiently feminine while also firing a man for being insufficiently masculine. Although this seems to treat the sexes equally, it is still discriminatory because it involves adverse job actions based on gender. In other words, even though the treatment overall was equal, each person who was fired has a legitimate gender discrimination claim.
Similarly, bullying or harassment that is not based on protected characteristics can easily mutate into illegal discrimination over time. The bully or harasser may take permissive messages from the fact that you have not disciplined them for their behavior.
Don’t take the risk. It’s important to build a culture of workplace inclusion even if you could otherwise technically comply with the law. For one thing, it prevents behavior that could be taken as discriminatory and lead to a dispute. For another, it sends the message that no bullying or harassment is welcome.
Send that message from the top. Make an overall diversity, equity and inclusion plan. Train new hires and employees at every level about bias, microaggressions, respect and professionalism. Make clear that you mean for every employee to feel safe from harassment and included in the workplace culture.
Lead by example. Your workplace culture will manifest based on what behaviors are expected and rewarded, either formally or informally. Make sure you’re rewarding behaviors that promote your company’s success and minimize internal strife.