[Music] Welcome to the Millennial Lawyer Podcast with attorney Mark Shirian, a fierce advocate for victims of discrimination, harassment, and retaliation in the workplace. Today’s episode explores the difference between workplace bullying and illegal harassment and when you have a real legal claim. I’m Sophia Morales and today’s episode is: bullied at work when harassment crosses the legal line. Welcome back to the show, Mark. 

Happy to be here. 

So, tell us, what is the difference between general workplace bullying and unlawful harassment? It seems like that’s probably a gray line there at some place. 

Yeah, that’s the million-dollar question, and this comes up a lot. So to start, general bullying, being mean, micromanaging, yelling might be terrible management, but it’s not necessarily illegal unless it’s actually based on a protected characteristic. So unlawful harassment must be connected to a protective class. So, for example, your race, gender, sexual orientation, religion, national origin, disability, or any other protected status. So a boss who’s equally nasty to everyone isn’t necessarily breaking discrimination laws, but a boss who targets women or minorities, for example, is. So, that’s the main distinction when it comes to bullying in the workplace. 

Can you explain what a hostile work environment actually means in legal terms? 

Sure. So, legally, a hostile work environment requires conduct that’s severe or pervasive enough to alter the conditions of employment. So for example, one offensive joke probably doesn’t qualify, but a pattern of discriminatory comments and exclusion from meetings based on protected status or ongoing sexual remarks could definitely rise to the level of a hostile work environment. The conduct must be unwelcome based on protected characteristics and so severe that a reasonable person would find the workplace intimidating or abusive. 

Do you have an example of something like that that you could share with us? 

Comments about your religion. Obviously in the sexual harassment context, unwanted touching is definitely an example of a hostile work environment. It needs to be a pattern of conduct that makes the workplace intimidating or abusive and and and also tied to your protective class. 

Okay. So, what kinds of evidence are going to be most useful when trying to prove a harassment case like this? Because a lot of times what you’re saying is it’s directed at a particular class. So, maybe not all of your other fellow employees are experiencing the same hostile environment, right? 

Well, obviously documentation would be the most helpful, whether it’s saving emails, text messages, voicemails, keeping a detailed journal is also helpful. In my experience, witness statements from other co-workers. I mean, it’s the toughest to get because co-workers are usually not so open to coming back out. 

Exactly. 

Exactly. especially if it’s against their employer or supervisor or boss, it’s difficult. But these are the people that are in the best position to witness whether this was going on or not. So I would say witness statements, obtaining witness statements is probably the best thing that you can do as far as evidence and proving a harassment case. 

Yeah. And I would imagine it is probably easier to get from somebody who’s separated employment from that employer than currently still there. 

Exactly. Former employees definitely. 

And are there any common myths that clients believe about workplace rights that really aren’t legally accurate? 

Kind of what I was saying earlier, I think the biggest myth is that you can sue for a hostile work environment when your boss is just a jerk. And another is thinking that HR is there to protect employees. HR is there to protect the company, not the employee. And many believe they need a smoking gun or perfect evidence to have a case, but circumstantial evidence can be very powerful. Also people think they have to quit in order to bring a case. But staying while documenting abuse often can strengthen your case as well. So those are some myths that I come across. 

Yeah. And I’ve heard some of those. When does retaliation become part of the claim? You mentioned that HR is not your friend here. And I imagine there’s some betrayal that may go on around that. 

Yeah. So people need to understand that retaliation is a separate claim from a hostile work environment or an allegation of discrimination. You usually see retaliation when the employee comes forward and makes a formal complaint whether to their supervisor or to HR. And yeah, retaliation basically occurs when you suffer an adverse action for complaining about discrimination or participating in an investigation. So it could be termination, demotion, schedule changes, or increased scrutiny after you report harassment or discrimination. 

So retaliation claims are often stronger than the underlying discrimination because the timing is so clear. You complained on Monday, for example, and got fired on Friday. 

Yeah, that’s how it usually works. 

Okay. And how do power dynamics play into this? Is it different if it’s employee to employee versus a manager to the employee and how does that affect liability? 

Yeah, that’s a great question and it comes up a lot. So, I would say that power dynamics are crucial. When harassment comes from a supervisor in New York, especially in New York City, the company is often automatically liable because supervisors act as the company’s agents. 

Sure. 

But on the other hand, with co-worker harassment, you have to prove that the company knew or should have known of that co-worker’s propensity to behave that way and that they failed to act. So the higher up the harasser, the stronger the company’s liability, especially if they have hiring or firing power over you. 

Yeah, I could definitely see that. And I suspect you probably would need a lot more evidence to make that claim against a co-worker versus a manager. 

You have to Yeah, exactly. And that’s what makes it a little bit more difficult when it’s harassment by a co-worker. You need to demonstrate that they knew or had reason to know that they have that propensity to um act that way towards you. 

How does social media play into this? Can you use social media posts or DMs to uh support your worker workplace harassment case? 

Absolutely. So, social media has become increasingly important with respect to evidence in a case. So, I’ve seen cases based on supervisors’ inappropriate Facebook messages or Instagram comments about an employee. Even private messages can become evidence if they relate to work or show discriminatory attitudes. But be careful because your own social media can be used against you too and I’ve certainly seen that. 

Can you share a story where someone turned a toxic workplace experience into a successful legal result? 

Absolutely. So, I represented a woman whose supervisor made daily comments about her pregnancy, suggesting that she’d be less committed after having a baby. She documented everything in emails to herself. When she returned from maternity leave, she was demoted to make room for someone without distractions, and we showed a clear pattern of pregnancy discrimination. So she not only won a significant settlement but the company implemented new training programs with respect to pregnant workers. So that was nice. 

Excellent that’s really what you hope for when you have to go down this road, right? That there’s real change that happens afterwards. 

Absolutely. 

So what should someone do immediately if they feel like they’re being harassed at work? Because I know sometimes this is kind of a growing dawning realization. It’s not like someone flips a switch always. That’s what makes it more difficult. And it’s for most people, this is their only source of income, their job, right?

For most people, their biggest asset is their job. So, exactly what you just said, it’s not such an easy thing to come forward with these sorts of allegations, even if you’re not sure if it’s breaking the law or not. Like I said earlier in this episode, so I would say start with documenting everything immediately. Report it in writing to HR and keep a copy. Follow your company’s harassment policy to the tea. You know, if comfortable, tell the harasser their behavior is unwelcome in writing if possible. Continue doing good work to prevent pretextual firing. Consult with an attorney early, even if you’re not ready to sue. We can guide you on preserving evidence and protecting your rights while you’re still employed. 

Yeah, absolutely. It’s such a delicate minefield to kind of navigate your way through. And absolutely. I think it’s one of these moments where you have to just kind of trust your gut. If it’s not feeling right, maybe you do need to start taking some steps to protect yourself. 

Absolutely. 

Do you have any final words of wisdom for anyone out there who’s got who’s kind of niggling at them? 

We spend a lot of time at work. So, a lot of us spend more time at work than we do with our own family and friends. So, it is an intimate setting and if something feels uncomfortable, you’re better off documenting it just to be safe rather than not saying anything and not having a document. So that’s my biggest piece of advice. Better to have the documentation and not need it. 

Absolutely. Thank you for sharing all this with us today, Mark. 

My pleasure. Thank you for having me. 

If you’re experiencing harassment or discrimination, don’t wait to get legal help. Visit shirianpc.com to speak with Mark Shirian and protect your rights. And remember to subscribe and leave a review. It helps others find the legal answers that they need. And make sure to share it with someone you care about. Thanks for watching. Be sure to hit that like and subscribe button and leave us a review in the comments.