A federal court in Kentucky recently ruled that an employer was not liable for a former manager's abusive conduct that was directed equally at men and women. In Street et al v. U.S. Corrugated, Inc., (January 25, 2011) (http://tinyurl.com/6587e5r), five employees (two men and three women) sued the company alleging that they were terminated due to their gender and in retaliation for their complaints of gender-based harassment in violation of Title VII.

The company hired a new manager, whose management style included yelling, use of profanity, throwing objects, and making physical threats. The manager was eventually removed from his position after employee complaints. Several weeks later, the five employees were terminated due to job cuts, alleged unsatisfactory performance, and, in one case, because the position was being outsourced. Of the six people who complained of the manager's conduct, five were laid off and one was demoted.

In response to the employees' claims of gender discrimination, the company asserted that because the manager was equally abusive to all employees, regardless of gender, the claim of gender discrimination failed. The Court agreed, stating that Title VII is not a generic anti-harassment statute and that, in order to have a viable claim, the harassment must be based on sex. The Court noted that both male and female employees were subjected equally to the manager's abusive antics. Although the manager's actions were certainly inappropriate, this was insufficient to establish a Title VII claim absent evidence of gender-based discrimination.

With respect to the employees' retaliation claims, i.e., that they were terminated in retaliation for complaining of the manager's conduct, the Court held that the employees were not engaged in protected activity when they complained because their complaints were never coupled with complaints that the manager's conduct was based on gender. Instead, the complaints were based on general abusive behavior toward both men and women, which is not unlawful under Title VII. The Court stated that Title VII only protects employees from retaliation for having complained on unlawful actions, such as discrimination based on gender, race, age, and so forth. Title VII does not protect employees who simply complain of bullying.

Although the company in the above case dodged a bullet because the manager apparently bullied everyone, employers are well advised to implement and enforce no-harassment and/or anti-bullying policies prohibiting all forms of harassing and bullying conduct in the workplace, even if the conduct is not based on an employee's protected status. Like unlawful forms of harassment, abusive and bullying conduct can have an equally detrimental effect on workplace morale, employee performance, and employee turnover. Employees also should be encouraged to report all forms of harassment or bullying. Employers should consult with their attorney regarding the law in their specific jurisdiction concerning equal-opportunity harassers or bullies.