The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions for future editions of “Dear Atty.”
I am the human resources manager at our company. We have a salesman, Joe, who has been with our company for a long time. He truly is an average Joe. He seems content to skate by with doing the least amount of work as possible. Just recently, we hired a new sales manager named Mike, who is now Joe’s boss. Mike is very aggressive and seems determined to get more production out of Joe.
In response, Joe came to me and complained that the pressure that Mike is putting on him to produce is creating a “hostile work environment”. He actually used those words. I know from attending employment law seminars that a hostile work environment is a serious thing and should be avoided. Do I need to investigate Joe’s complaint or is he just whining?
Tired of Whiners
There is no crying in baseball and there should be no whining in business. It sounds like this is a case of there being a new sheriff in town and Joe not liking to be told what to do. It also sounds as though somebody coached Joe to use the phrase “hostile work environment” in order to get your attention.
The Law: Legally, there is no such thing as generic “harassment”. Courts repeatedly have stated that the discrimination laws are not a “general civility code”. In order for harassment to be legally actionable, the harassment must be based on a protected characteristic such as sex, age, race, national origin, etc.
So, if Joe’s only complaint is that Mike simply is expecting him to do his job better, no legally recognized harassment has occurred.
Still, you would be wise to meet with Joe to confirm the exact nature of the alleged harassment. You want to make sure that it is not based on any protected characteristic. In addition, you should meet with Mike and let him know about Joe’s complaints. It would be helpful to get confirmation from Mike that the only “harassment” that is going on is in the nature of Mike expecting Joe to improve his performance. In addition, you will want to stress with Mike that he is not to retaliate against Joe for bringing the complaint to your attention.
The Law: In order to state a claim for retaliation, an employee must show that he exercised a protected right (e.g., complained about harassment) and that some negative employment action was the result of the exercise of that protected right. In order to meet the first prong, the employee need not prove that the right that he believed he was exercising actually is protected under the law. Instead, the employee need only prove that he had a “good faith belief” that he was exercising a protected right.
In this case, Joe’s complaint about generic harassment likely was not the exercise of a protected right because no legally recognized harassment occurred. Yet, if Joe can show that he had a good faith belief that he was exercising a legal right he could have a legal claim. This is why retaliation claims are the most frequently filed employment claims; Joe’s weak harassment claim could give rise to a relatively strong retaliation claim.
With all of that said, this situation actually is pretty simple. Joe needs to do his job and stop whining.
If you would like additional information about this topic, please contact Pete Albrecht. Pete is the president and a shareholder at Albrecht Backer Labor and Employment Law. He has represented employers for over 28 years.