Since I blogged last week on workplace bullying (see Bullying boss justifies unemployment award), there has been a flurry of activity in the blawgosphere on this issue. This month's ABA Journal has an article discussing both sides of the anti-bullying movement, while Overlawyered and the Laconic Law Blog, like me, are critical of this initiative.
The Tennessee appellate decision cited in the ABA Journal article frames this issue best:
It is necessary to distinguish between harassment and discriminatory harassment to insure that discrimination laws do not become a general civility code…. If there is harassment in the work place, the burden is on the plaintiff to establish that such harassment is based upon one's age, race, sex or other protected class characteristic that is prohibited by the civil rights statutes. The fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive, does not violate civil rights statutes…. Nothing in the record established that Ms. Doyle treated age-protected employees any differently than non-protected employees, rather, the testimony clearly showed that Ms. Doyle was an equal opportunity oppressor, using her intense, dominant, abrupt, rude, and hard-nosed management style on all St. Thomas employees. Disagreement with a management style alone, without evidence of a discriminatory intent or motive, no matter how disagreeable that style may be, is simply insufficient to warrant protection…. The Sixth Circuit has recognized that, "personal conflict does not equate with discriminatory animus," … and it has further emphasized that "it is important to distinguish between harassment and discriminatory harassment in order to ensure that Title VII does not become a general civility code."