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Running a business and managing employees can be difficult. Friction can develop between employees and supervisors, including conduct that may be considered bullying or harassment. This inappropriate workplace conduct can quickly lead to legal issues resulting in expensive litigation. According to the Equal Employment Opportunity Commission (EEOC), there has been a surge in workplace misconduct claims, including harassment, in recent years. Because of this, employers should be aware of the current legal standards relating to harassment and bullying in the workplace and take proactive steps to prevent this conduct in their workplaces.

Bullying

While Oregon law does not define bullying, the Oregon Bureau of Labor and Industries (BOLI) describes it as repeated actions or behavior directed toward an individual or group that is intended to intimidate, offend, humiliate, degrade, or undermine. Bullying can come from any employee, including supervisors and managers. Workplace bullying comes in many forms, and it may look different based on who is doing the bullying. For example, when a manager or supervisor bullies a subordinate, they might exclude or socially isolate the employee, swear at the employee, treat the employee differently than the rest of the work group, or change the employee鈥檚 assignments or expectations without justification. Similarly, an employee might bully their co-worker by sharing the person鈥檚 personal or confidential information without permission, spreading rumors, or creating groups in the workplace that exclude the employee.

While not required, maintaining an anti-bullying policy sets clear expectations for employees regarding unacceptable behavior in the workplace. BOLI published a model anti-bullying policy that contains sample language for employers to consider when drafting their own policy.

Workplace bullying, when present, can negatively impact a business resulting in more callouts, turnover, stress-responses, and declines of morale. Additionally, although bullying alone is not illegal, when it is based on a protected class, it can be unlawful harassment or discrimination.

Workplace harassment

Federal and Oregon law prohibit workplace harassment and discrimination based on an employee鈥檚 protected characteristics, or the protected characteristics of an employee鈥檚 associates. Oregon law expands Title VII鈥檚 protections from race, color, religion, sex, and national origin to include sexual orientation, gender identity, marital status, age (if the individual is age 18 or older), and expunged juvenile record.

Harassment includes all forms of offensive or unwelcome physical or verbal conduct that is based on a protected class and interferes with an employee鈥檚 work or creates an intimidating, hostile, or offensive working environment. Some examples include saying or writing an ethnic, racial, or sex-based slur; forwarding an offensive or derogatory 鈥渏oke鈥� email; displaying offensive material (such as a noose, swastika, or other hate symbols); making fun of a person鈥檚 religious garments, jewelry, or displays; and mimicking a person鈥檚 disability.

Under the Oregon Workplace Fairness Act (OWFA), employers are required to maintain a written policy containing procedures and practices to reduce and prevent harassment, discrimination, sexual assault, and retaliation. The law requires these policies to include certain specific information, including, for example, to whom employees should report harassment, discrimination, and/or sexual assault, and the statute of limitations for workplace harassment claims.

An employer鈥檚 liability for harassment

Under Oregon law, an employer is liable for harassment by co-workers if the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action, including:

• intervening immediately with actions reasonably designed to effectively stop harassing behavior;
• conducting a prompt, adequate investigation to determine the extent of the harassing behavior;
• taking appropriate remedial measures proportionate to the seriousness of the harassing behavior;
• placing no burden on the reporting employee or aggrieved party, or making every reasonable effort to minimize any burden placed on them;
• not retaliating against the reporting employee, the aggrieved party or a participant in the investigation; and
• taking steps that are reasonably calculated to prevent retaliation and future harassment.

Similarly, employers are strictly, or automatically, liable for supervisor harassment of an employee if the harassment occurs in connection with a tangible employment action, such as a change in work schedule or assignments, discharge, demotion, or denial of promotion. Even if there is no adverse employment action, an employer is still liable if it knew or should have known about the harassment and failed to take immediate and appropriate corrective action.

Conclusion

Employers should understand the differences between workplace bullying and harassment. While both types of conduct are inappropriate for the workplace and should be prohibited, bullying is not technically illegal, while harassment is illegal. Employers should consider implementing an anti-bullying policy and, with the rise of harassment claims in recent years, employers should also take a moment to review their current harassment policies to ensure they are up to date and compliant with the requirements of the OWFA. Given the complexity of this area of employment law, employers should contact trusted employment counsel with questions or for assistance drafting or updating policies.

Max Retzlaff is a law clerk with Barran Liebman LLP. He works with attorneys to perform various duties. Contact him at 503-276-2130 or聽by visiting www.barran.com/our-team/max-retzlaff.

Becky Zuschlag is an attorney with Barran Liebman LLP. She advises and represents employers on a wide range of workplace issues. Contact her at 503-276-2151 or聽[email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.