Nothing you do is right. It doesn’t matter that you follow policy and procedure to the letter. The sergeant is watching, waiting for you to screw up or looking for an excuse to claim you did wrong. He wants to make an example out of you as the only female officer in the squad.
Uniform shirt wrinkled? Too many pronouns or prepositions used in your report? Patrol car tires underinflated?
I could go on with the list of petty, inane-sounding grievances, but anyone who has been unfairly targeted in the police workplace has probably experienced similarly ridiculous scrutiny from a supervisor.
Maybe your supervisor is not the problem. Perhaps a group of officers behave so unprofessionally that you begin to consider leaving the profession. Locker room hijinks, cliquish behavior and the targeting of other officers create an unwelcoming work environment. To make matters worse, ranking officers not only condone the behavior but participate in it.
Or perhaps one officer singles you out with an insulting nickname, makes you the butt of jokes in front of colleagues, tries to physically intimidate you or damages your personal property.
If you have experienced this kind of behavior, these scenarios may sound familiar.
I have written and presented extensively on issues surrounding sexual harassment and discrimination in the law enforcement workplace and spent a significant part of my legal career representing officers with employment-related claims. But I was also frequently consulted by officers whose complaints did not involve discrimination based on gender, race, ethnicity, religion, or sexual orientation.
These complaints described behaviors like some of those outlined above that did not fit within the statutorily mapped prerequisites for the officers to file complaints with their human resources department or the state labor and employment commission. So what happens when workplace behavior crosses a professional or ethical line but may not cross a legal one? Does an officer have any legal recourse?
The answer depends on the conduct and the circumstances surrounding each case.
Each of the situations described in the opening represents one of three common complaints I encountered as a police labor and employment law attorney: a hostile work environment, a toxic workplace and workplace bullying. Although the terms are often used interchangeably, they are not legally the same.
The first scenario may support a hostile work environment claim because the alleged mistreatment is tied to gender. The other two scenarios may involve serious misconduct, but they do not automatically create a legal claim. Whether they do depends on the nature of the conduct, the circumstances and whether the behavior is connected to discrimination, retaliation or another recognized legal theory.
This article will explain the differences among these workplace problems, the laws that may apply and practical ways officers can respond.
The toxic workplace and bullying
A toxic workplace culture develops when trust among colleagues and beneficial working relationships fostered by that trust are diminished, sometimes to the point of irreparable harm to the agency mission, due to the systemic nature of negativity, fear and detrimental behavior.
It is distinguishable from the closely related but separate issue of workplace bullying.
The toxic workplace has come to denote chronic disrespect, abuse and/or safety concerns among employees that result in either lost wages, punitive employment outcomes or emotional distress. It is typically ingrained in the culture of the workplace, widespread and systemic. A toxic work environment, though, may not rise to the level of unlawful employment-related conduct.
Bullying is on a micro scale compared with the macro environment of a toxic workplace. It may be part of the overall issue, or bullying may be a stand-alone concern since it is interpersonal in nature, targeted and malicious in intent.
While much of the cited conduct falls into what could be described as a comprehensive bullying definition, presently there are no recognized statutes covering bullying in the workplace. Federal law does not prevent workplace bullying per se, but it does provide a remedy for bullying-like behaviors under several statutes, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act. These statutes, though, hinge on a plaintiff being within defined protected categories.
A few states have introduced legislation mandating employers to provide anti-bullying training, and offering partial immunity as a benefit for compliance (see Tennessee Code Annotated Title 50, Chapter 1), and others, like Connecticut in 2015, have considered legislation addressing workplace bullying among state employees (see Connecticut Senate Bill 1035). Without set legislation or workplace policy, though, employees in general are left with little recourse.
Even in New York, a state that along with California is considered one of the more protective jurisdictions of employee work rights, the courts have said the law does not exist as a general civility code. Employers can plead as a defense that the alleged conduct was nothing more than a petty slight or trivial inconvenience and thus not actionable under state law.
Under federal law, conduct generally must be severe or pervasive before it crosses the threshold into an unlawful hostile work environment. State standards may differ. Claims based on workplace bullying or a toxic workplace culture are often tied to allegations of retaliation or unequal treatment. Often, successful cases are also linked to disparate treatment based on a protected class.
A municipal police officer once came to me about his captain, who was insufferable and treated the officer, who had over 10 years’ experience, with disrespect. He denied him overtime, but not in a way that ran afoul of the contract, gave him the worst assignments, badmouthed him behind his back to other officers and supervisors and, as a taller and broader individual, often attempted to physically intimidate him.
None of this, though, came within conduct I could put in a complaint because it was not connected to the victim officer’s gender, sexuality, race, ethnicity or religion. I told him to sit tight and document, and that the captain was bound to mess up. This type of behavior is not isolated and is often part of an overall problem.
Several months later, three female officers visited my law office complaining about the same captain. Among them, I had two solid cases of gender discrimination and one that combined sexual harassment with multiple incidents of sexual assault. After two years of litigation, I secured three money judgments against the captain, his demotion and an extended probationary period.
While I could not do anything with the bullying allegations made by the male officer, the captain’s aberrant workplace behavior eventually came to light in the other cases. The point of this story is that toxic work environments and bullying are often entwined with more concrete, statutorily defined unlawful workplace conduct.
The hostile work environment
A hostile work environment differs from a toxic workplace in that it may constitute unlawful workplace conduct. It is not only actionable conduct but often successful when properly pleaded and supported with factual proof. A hostile work environment is one in which unwelcome or discriminatory behavior creates an intimidating, offensive or oppressive environment for the employee. Once again, though, the conduct is linked to a legally protected class.
While federal law defines what constitutes a protected class, state laws may expand upon the definition. Similarly, state and local municipal laws may expand workplace protections. For instance, the New York City Human Rights Law provides not only expanded definitions of legally protected status but also eases the standard of proof. The federal “severe or pervasive” standard is replaced by a “treated less well” standard requiring that the complainant experienced differential treatment based on their identity.
Many elements of a toxic workplace and bullying are identifiable harms that a complaining officer’s attorney can outline in a pleading if they are tied to some form of discrimination based on protected status or retaliation. Otherwise, the behaviors are not necessarily illegal.
Why these topics matter in policing
Officer mental well-being is better understood today than it was in the past. One significant factor negatively affecting officer mental health is organizational stress. The National Policing Institute defines this as “pressures stemming from a law enforcement agency’s internal structure, leadership, and culture.” [1] Several factors contribute to organizational stress, including interpersonal conflicts, a toxic environment, favoritism, internal politics and overbearing leadership that cultivates distrust and doubt. Organizational stress is often cited as an aggravating factor to the operational stress police officers encounter.
This can lead officers to suffer one or more of three outcomes resulting from organizational stress:
- Mental and emotional health consequences;
- Physical health consequences;
- Professional and behavioral consequences.
Research examining the impact of organizational stress has consistently linked it to negative outcomes affecting officer health, well-being and performance. Depression, anxiety, burnout, sleep disorders, physical health problems, strained domestic life and poor job performance are among the potential consequences associated with excessive organizational stressors.
What officers can do
Understanding the distinction is only the first step. The next question is what officers can do when they find themselves working in a toxic, bullying or potentially unlawful environment.
As in any situation involving a potential workplace claim, the first place to start is at the agency level and attempt to address the problem in-house. This begins with a supervisor and works its way up the chain of command or to human resources. Depending on the nature of the claim, specific administrative procedures may also have to be followed before a lawsuit can be filed. Internal reporting procedures and external filing requirements can carry different deadlines, so officers should understand both.
Before filing a workplace claim, it is highly advisable to consult with an experienced employment law attorney. Litigation is not always the answer and careful consideration is required. Once a claim is filed, an employer may become defensive and begin scrutinizing the complaining employee’s conduct.
The toxic workplace
The first piece of advice I gave any client with a potential workplace situation was to not engage or get pulled into the nonsense occurring around them. Negative work environments develop quickly when one or a few instigators successfully draw others into their toxic culture. Don’t become embroiled in office politics or drama. This includes sharing gossip about what is going on with co-workers. Stay uninvolved and above the fray.
The next thing I would tell a client is to document anything that impacts them negatively in the workplace. This means keeping a private log with dates, times, individuals involved and notes on what was said or done. While many in law enforcement may find it distasteful or a betrayal of fellow officers, consider how it feels to be the victim of an adverse employment situation. Any incident that feels abusive, retaliatory or unfair should be recorded.
Strategy will also hinge on who is behind the toxic culture. Is it one individual, several or a systemic problem? Obviously, a simpler resolution is possible when there is a lone actor. Quite often, others are also feeling negatively impacted. A systemic issue is the most problematic and may require outside assistance. As noted above, though, be careful not to get drawn into office gossip.
Resolution of the problem is the goal, but achieving it is the hard part. Change is difficult unless it is initiated by those in authority or demanded by a group of like-minded employees. There can be credibility and greater job protection in numbers.
Bullying
This is often a one-on-one situation, and workplace bullies may commit their acts in isolation from others or use their position at work to demean another employee. Policing is a career that unfortunately exposes one to plenty of instances of workplace bullying.
As in any work setting, one method for dealing with workplace bullying is to address the behavior when it happens. Be direct about the behavior, how it makes you feel and request that it stop. Bullies may act for a variety of personal or social reasons. If confronting a co-worker about bullying behavior, it is best to have a witness present. If a supervisor is involved, document the conduct and address it through formal channels.
Bullying often involves a pattern of conduct and an impact on the victim. Document both as each incident occurs — the date, time, location and description of the conduct, as well as the negative impact it has on your work performance or mental or physical health.
Hostile work environment
The strategy for handling hostile work environment situations does not differ from the above responses. It frequently overlaps with toxic workplace situations and bullying. Documentation, however, should keep the applicable legal standard in mind. A hostile work environment may be legally actionable.
Most important, though, is understanding the internal human resources filing process and the external requirements for filing with the federal EEOC or comparable state agencies. There are strict time frames for filing, and missing an applicable deadline may prevent a claim from moving forward.
Case law
State laws differ in how they treat bullying and toxic workplace claims. There may be some statutory relief in your state under Healthy Workplace laws, but overall, without a link to protected class status or retaliation, bullying and toxic workplace cases can be difficult to pursue. The tort of intentional infliction of emotional distress (IIED) has been used to plead claims of workplace bullying and toxic work environments, but there have been mixed results.
Extreme and outrageous conduct on the part of the defendant is required. Many state court decisions set a high bar to meet that standard. Conduct exceeding all bounds of decency is the legal threshold to reach. (See, e.g., GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999)). A hostile supervisor or behavior that is merely rude and uncivil generally does not meet the criteria.
Additionally, workers’ compensation laws in some states may bar IIED claims arising from workplace conduct. In jurisdictions where such claims may proceed, courts generally set a high bar for conduct arising from ordinary employment disputes.
Hostile work environments can be unlawful and may be addressed through administrative forums, such as the EEOC, or in court. The core test came from the U.S. Supreme Court case Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The Supreme Court held that sexual harassment creating a hostile work environment is a form of illegal sex discrimination prohibited by Title VII.
Elements of successful claims generally require membership in a protected class, unwelcome harassment based on membership in the protected class, harassment severe or pervasive enough to alter the conditions of employment and a basis for employer liability.
The test was further developed in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), which held that psychological harm is not required. Instead, the Court focused on both the objective and subjective offensiveness of the workplace conduct. When analyzing the severe or pervasive standard, courts look at the totality of the circumstances. This includes the frequency and severity of the conduct, whether it is physically threatening or humiliating or merely an offensive utterance and whether it unreasonably interferes with the plaintiff’s work performance. No single factor is required.
While the above reflects federal standards, state statutes and case law may differ. Some state laws are more favorable to employees than federal pleading requirements, and an experienced employment law attorney should be consulted to determine the most appropriate forum.
How police agencies can build healthier workplace cultures
The best workplace environments establish separate anti-bullying and civility policies in addition to their discrimination and harassment policies. Often, the agency code of ethics also incorporates elements of expected behavior. When these expectations are established internally, they need to be mirrored by leadership. Zero tolerance must be enforced. This can be done by holding officers accountable for bullying and uncivil conduct toward co-workers or subordinates. Such conduct can also be the basis for disciplinary action.
Supervisors must be trained in the difference between legitimate performance management techniques and targeted mistreatment. Documenting performance issues must be contemporaneous and neutral, not petty and personal. Supervisors are charged with protecting both the organization and its employees, and how they manage employee performance impacts both.
Employee complaints should be investigated promptly and effectively. If an investigation lacks credibility and can be described as a sham investigation, it may lead to liability. Courts have found that a retaliatory sham investigation may support a claim of extreme and outrageous conduct. (See Graham v. Commonwealth Edison Co., 742 N.E.2d 858 (Ill. App. Ct. 2000)). Investigations that are delayed, biased or rote may raise further problems for the employer.
Ideally, investigators should be outside the employee’s chain of command, thereby reducing power imbalance concerns. The results of the investigation should also be clearly communicated to those involved, consistent with applicable confidentiality requirements. A complainant should not be left to wonder whether the complaint was addressed.
Most important for police leadership, aside from setting an example, is to track not only the complaints received but also the department’s culture. Exit interviews with retirees or transferring officers, employee turnover numbers and anonymous workplace climate surveys can be helpful. They not only provide qualitative data but also give officers a sense that management cares and that their feedback matters.
Lastly, management must understand the legal exposure faced in these situations and proactively address points of legal risk. Generic responses will not protect the employer, nor will they alleviate growing workplace problems. The organizational health of the police department matters. It is where officers get their cues.
Reference
1. National Policing Institute. Harmful Organizational Stress in Policing: Can It Be Prevented or Reduced?
