We all remember the taunts of the schoolyard bully. And certainly, we would all like to forget them! It seems some people simply cannot leave their bullying on the schoolyard. Sometimes, it’s a manager who engages in persistent workplace bullying of their staff. Other times, it’s a junior colleague who performs petty pranks. Regardless of the origin, according to the Workplace Bullying Institute, bullying costs American employers somewhere between hundreds of thousands to millions of dollars each year.
But what’s the difference between bullying behavior and harassment? And how do you know if you’re being bullied or sexually harassed? In this blog post, our team at Smithey Law Group LLC will discuss the difference between workplace bullying and sexual harassment. We’ll talk about the definition of each and the overlap between the two. And we’ll tell you how to get help if you’re a victim of either or both.
What Is Bullying?
Bullying is typically defined as persistent, unwelcome behavior toward another person. It usually occurs over a period of time (meaning, it’s not typically a one-time behavior). Bullying is meant not only to cause harm, but also to leave the person being bullied feeling powerless to respond. Bullying can be verbal, physical, or done online. It can also include teasing, stalking, and threats, according to the U.S. Department of Health and Human Services’ Stop Bullying resources.
Workplace bullying is typically no different from any other form of bullying, except that it takes place at work. It’s important to note that while bullying is an awful thing to experience, unless the bullying is related to a protected category like race or sex, it’s likely that they cannot be held legally accountable for their bad actions. But if the bullying is of a sexual nature, or if you believe it is because of your sex, you may be a victim of sexual harassment.
For instance, a boss who never has a nice word for anyone—male or female—might be a bully, but is likely not a harasser. However, that doesn’t make their behavior okay. Nor does it mean that it must be tolerated. Workplace bullying may not be actionable in court, but employers are not prohibited from instituting workplace policies prohibiting bullying conduct.
On the other hand, perhaps you have a colleague who tells a couple slightly dirty jokes that you don’t like—but that you don’t respond to. In response to your lack of enthusiasm, they proceed to send graphic sexual pictures to your work email. In this case, you may have been sexually harassed, even if this person sent you pictures only once.
Workplace Bullying vs. Sexual Harassment
Differences Between Workplace Bullying and Sexual Harassment
Workplace bullying and sexual harassment differ in a few important ways. First, not all bullying is sexually motivated. Bullying can mean someone has low self-esteem or low emotional intelligence—or simply that someone is not a nice person. However, bullying often has no sexual component. Furthermore, it is often perpetrated without regard for the victim’s gender.
Second, bullying is viewed as a persistent behavior. Being berated by your boss one time does not usually constitute workplace bullying. In the case of sexual harassment, being touched inappropriately a single time or being cat-called only once could constitute actionable sexual harassment.
When Workplace Bullying Becomes Sexual Harassment
However, according to the Workplace Bullying Institute, nearly 20% of workplace bullying incidents cross the line and become harassment. Harassment itself is an illegal form of discrimination based on race, sex, religion, sexual orientation, national origin, color, age, disability, pregnancy, or genetic information. The State of Maryland includes all these categories in its definitions; your state may include others. Be sure to check with a local employment legal matters lawyer if you have questions about harassment.
A common misconception is that for bullying to be “sexual harassment,” the bullying must be sexual in nature. No! Rather, the bullying can be “because of” someone’s sex. For example, it could be that someone is picking on a colleague because she is a woman. If you believe that you’re being bullied to the point of being sexually harassed, speak with an experienced employment legal matters attorney as soon as possible. You do not have to tolerate workplace bullying and sexual harassment.
Laws Preventing Bullying
Harassment is Unlawful, Bullying Is Not
There are no federal laws that make workplace bullying illegal. In fact, there are almost no state laws that punish bullying either. California is the only state to even require employers to provide anti-bullying training. However, as a best practice, employers should consider providing anti-bullying training to its managers and employees.
Current State of Anti-Bullying Laws
As of 2022, 29 states have introduced anti-bullying legislation for schools and private workplaces. No state has passed comprehensive anti-bullying laws to date. In fact, many states have been introducing the same anti-bullying bills for years to no avail. There seems to be little appetite for state legislatures to take up the problem of defining and dealing with workplace bullying.
That said, some states like Tennessee have passed laws that prevent bullying in public workplaces. However, as of 2020, only Puerto Rico has officially passed a comprehensive anti-bullying law.
Regardless, if you are concerned you’re being bullied and the conduct is escalating, contact an experienced employment legal matters lawyer. A knowledgeable employment legal matters attorney can provide you with resources on how to combat workplace bullying. An employment law lawyer can also provide you with signs to look out for to understand if you’re actually being sexually harassed.
How We Can Help
At Smithey Law Group LLC, we’re a team of employment law attorneys who help our clients navigate the most challenging employment law problems faced in today’s workplaces. Joyce E. Smithey is a top employment litigator and negotiator in the Annapolis, Maryland area, and represents employers and employees throughout the Maryland and D.C. area. Contact the Smithey Law Group LLC today to arrange for a confidential consultation.