USA – NEW YORK Trends and Developments Contributed by: Tracey Levy, Simone Handfield and Raphael Lee, Levy Employment Law, LLC
address bullying prevention, defines abusive conduct as that engaged in “with malice, that a reasonable per - son would find hostile, offensive, and unrelated to an employer’s legitimate business interests”. Both states provide examples that include: • repeated verbal abuse such as derogatory remarks, insults and epithets; • threatening, intimidating or humiliating verbal or physical conduct; and • gratuitously undermining or sabotaging a person’s work performance. Employers can always define bullying under their own policies more broadly than the state laws. However, when the policies lack a clear definition, these laws provide a helpful framework for investigators tasked with determining whether behaviour reaches the level of bullying or abusive conduct. Sometimes manager behaviour will be found to be inappropriate, some - times it may be found to be nothing more than critical feedback that an employee did not want to receive, and sometimes the manager may have delivered appropriate feedback but in an inartful or poorly-timed manner that needs improvement but does not rise to the level of a policy violation. Distinguishing bullying from harassment Towards the other end of the spectrum, there may be times when a manager’s alleged behaviour is clearly egregious, such that the question for the investigator is whether it should be considered bullying or wheth - er it falls into the category of “harassment”. Some organisations have broad respectful workplace poli - cies that prohibit both harassment and bullying. Under such policies, the egregiousness of the behaviour is determinative of whether a policy has been violated. Who the manager is targeting is a lesser or potentially irrelevant concern. Other organisations may have differing policies with respect to harassment and bullying, or no prohibition at all with regard to conduct that does not meet its definition of “harassment”. Only behaviour that tar - gets an individual based on a protected character - istic reaches the level of harassment. If a manager is indiscriminate in the manager’s abusive behaviour, or has a personal issue with just a single individual, then
behaviours may fall outside the harassment definition and it becomes incumbent upon the investigator to assess who is being targeted. An investigator might find, for example, that a super - visor yells and makes demeaning comments to indi - viduals across the gender spectrum. That finding alone does not necessarily refute a claim of sexual harassment. Rather, the investigator needs to con - sider whether the level of hostility is more pronounced or publicly targeted towards women, or if other aggra - vating factors are shown. The same is true of harassment claims based on race, age, religion or other protected characteristics. An investigator needs to consider not only who is targeted, but also the severity of the behaviours as directed at different groups. If the behaviour truly is indiscriminate, then prohibitions against bullying may be implicated. If individuals falling within one particu - lar demographic group are uniquely targeted based on a protected characteristic, only then would an inves - tigator find the anti-harassment policy was violated. Selecting a Workplace Investigator: When to Hire Someone From Outside the Organisation The People or Human Resources function (HR) is most typically tasked with conducting workplace investiga - tions relating to alleged violations of employee hand - book policies or an organisation’s Code of Conduct. In organisations with a larger HR function, some or all of this work may be centralised in a dedicated employ - ee relations team or equal employment opportunity office, while more generalised issues of unfairness or favouritism (not based on any protected characteris - tic) are often looked into by the HR generalist support - ing that business function. Sometimes, though, an employer is best served by retaining someone from outside the organisation to investigate a workplace concern. Determining when to retain an outside investigator largely depends on four factors: conflicts of interest, sensitivity of the issue, skills and experience, and workload management. Conflicts of interest CEOs/business owners, board chairs and other sen - ior leaders can be the subject of an employee com -
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