Home » Commentary » Does a Manager Who Has Been Harassed by a Subordinate Have Any Legal Recourse?

Josh Goodbaum: Hi, Amanda.

Amanda DeMatteis: Hi, Josh. What are we going to talk about today?

Goodbaum: I want to talk about a manager who is being harassed by her subordinate. So, let’s imagine your client is a devout Muslim woman who wears a hijab – a modesty scarf – and she manages a diverse team. One of the people on that team is a white guy who really doesn’t respect Islam and says really nasty things to her about her headscarf and suggests that she is not American and she is disgraceful in some way, and he keeps picking on her because of her religion, because of her heritage, and because of the way she expresses that.

What kind of protection does the law provide to her, and what would you recommend that she do about this harassment from her subordinate?

DeMatteis: This is really deplorable conduct, and you need to do something about it. But you’ve made a very interesting distinction, which is that this conduct is coming from a subordinate. Therefore, we cannot necessarily hold this employer responsible for the harasser’s conduct. Compare that with if this was your supervisor who was saying these types of things to you. That could, in and of itself, lead to an action against the company. But when it’s your subordinate, it’s a bit different.

You still have some recourse though, and here’s what we suggest that you should do.

First of all, you need to report this. As this person’s superior, you probably have an obligation to write them up for anything that is against the company’s values or their employee handbook, etc. So, you should do that, right? This is conduct that you would write up any subordinate if they were treating one of your other direct reports this way. So, you should write this person up.

The next thing that you should do is you should complain to HR. Now, that is protected activity. If you are saying, “I am being treated differently based on my sex, my national origin, my religion,” whatever it may be, that in and of itself is protected activity, meaning, if your employer then retaliates against you for that complaint, well, now you might be able to hold the company responsible for what they have done in retaliation for your protected complaint of discrimination or whatever it may be. So, it’s super important that you do that.

What you don’t want to do is say, “Oh my God, I can’t stand this conduct. I’m gonna quit,” or “I’m not gonna tell anybody about it, and then I’m gonna quit.” Because what happens when lawyers like Josh and I surface is we go to this company and we say, “Hey, so and so has been treated horribly at work. It led to maybe a mental health issue because of the discrimination of a hostile work environment they were experiencing.” And what does that employer say? “We don’t know what you’re talking about. We’ve never been put on notice of that conduct. She or he never complained about that. Therefore, what could we have possibly done to correct a situation that we did not know was happening?”

So, it’s really important that you put your employer on notice about this, in order to potentially give you some recourse or liability against this company down the road. If you don’t do that, there might be potentially nothing that you can do for such terrible conduct that has no place in our workforce.

Goodbaum: I agree with all of that, Amanda, and I’ll add that most of the people who come to us as plaintiff-side employment lawyers, as employee advocates, are looking for a solution to their workplace problem. They’re not looking for a lawsuit.

So, hopefully, some of the suggestions that Amanda has given to you are tools that you can use to avoid the escalation of the situation, to enlist your employer, and particularly HR, in helping you resolve a situation with a really difficult subordinate, who it sounds like might not belong in your workplace, and that will lead you, hopefully, to not having to talk with a lawyer like us in the future. We’d be happy if nobody needed us, frankly.

So, thank you, Amanda, for that great advice. Thank you all for watching. We’ll see you next time.

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