What is the difference between workplace bullying and unlawful harassment?
Attorney Mark Shirian explained that general workplace bullying, such as micromanaging, yelling, or being mean, is not necessarily illegal. Poor management can create a toxic environment, but unless the conduct is tied to a protected characteristic—such as race, gender, sexual orientation, religion, national origin, or disability—it does not rise to the level of unlawful harassment.
Unlawful harassment must be connected to discrimination based on a protected class. For instance, a supervisor who is equally rude to all employees may not violate discrimination laws, but if women or minorities are singled out, that behavior could cross into illegal harassment.
What legally defines a hostile work environment?
According to Shirian, a hostile work environment requires conduct that is severe or pervasive enough to alter the conditions of employment. One isolated offensive comment typically will not qualify. However, a pattern of discriminatory remarks, ongoing sexual comments, or consistent exclusion from opportunities because of a protected status can create an unlawful workplace.
He emphasized that the conduct must be unwelcome, tied to a protected class, and significant enough that a reasonable person would find the environment intimidating, abusive, or hostile.
What types of evidence are most useful in proving harassment?
Documentation is crucial. Shirian advised employees to save emails, text messages, voicemails, and keep a detailed journal of incidents. Witness statements are especially powerful, though often difficult to obtain because coworkers may fear retaliation. Testimony from former employees, however, can often strengthen a case since they are less connected to the employer.
Evidence that directly demonstrates discriminatory behavior, or corroborates an employee’s account, can be the foundation of a strong legal claim.
What myths do employees often believe about workplace harassment?
Shirian noted several common misconceptions. Many employees assume they can sue simply because their boss is unpleasant, but harassment claims must be tied to a protected characteristic. Others mistakenly believe that HR departments exist to protect employees, when in reality HR primarily safeguards the company.
He also pointed out that many clients think they need a “smoking gun” or direct evidence to prove harassment. In practice, circumstantial evidence can be highly persuasive. Additionally, employees do not need to quit their jobs in order to bring a claim. In fact, staying while documenting abuse often strengthens a case.
How does retaliation become part of a legal claim?
Retaliation is a separate claim from harassment or discrimination. It arises when an employer takes adverse action against an employee for reporting misconduct or participating in an investigation. Examples include termination, demotion, reduced hours, or increased scrutiny after filing a complaint.
Shirian explained that retaliation claims are often stronger than the original discrimination claims because the timing is usually clear. For instance, if an employee complains about harassment and is terminated shortly afterward, the sequence of events strengthens the case.
How do power dynamics affect liability in harassment cases?
Shirian highlighted that power dynamics are critical. When harassment comes from a supervisor, particularly one with hiring or firing authority, the company is often automatically liable under New York law. In contrast, harassment from coworkers requires proof that the company knew—or should have known—about the misconduct and failed to act.
The higher the position of the harasser, the stronger the employer’s liability.
Can social media be used as evidence in harassment cases?
Yes. Shirian confirmed that social media plays an increasingly important role in workplace harassment cases. Inappropriate Facebook messages, Instagram comments, or direct messages from supervisors have been admitted as evidence in court. However, he also cautioned employees that their own social media activity can be used against them, so they must be mindful of what they post online.
What are examples of successful harassment or discrimination cases?
Shirian shared a case involving pregnancy discrimination. A supervisor repeatedly made comments suggesting that a pregnant employee would be less committed after giving birth. The employee documented the comments through emails to herself. Upon returning from maternity leave, she was demoted in favor of someone “without distractions.” Shirian and his team successfully demonstrated a clear pattern of discrimination, resulting in a favorable settlement and new company training policies protecting pregnant employees.
What should employees do if they feel they are being harassed at work?
Shirian advised employees to document everything immediately and report the behavior in writing to HR while keeping a copy for personal records. They should follow the company’s harassment policy precisely and, if possible, tell the harasser that their conduct is unwelcome—preferably in writing.
He emphasized the importance of continuing to perform well at work to avoid pretextual termination. Consulting with an employment attorney early, even before filing a lawsuit, ensures proper guidance on preserving evidence and protecting legal rights.
Final advice for employees experiencing workplace bullying or harassment
Shirian closed by reminding employees that they spend more time at work than anywhere else, making it a deeply personal environment. If something feels uncomfortable, it is always better to document it than remain silent. Thorough documentation can mean the difference between a dismissed complaint and a successful case.