United States: Don't Call It A Comeback: The "Return" Of Workplace Civility Rules

Last Updated: March 2 2018
Article by Sheila M. Willis

Dear Susan,

I have to tell you about a situation that has been occurring between John and myself. But it’s not what you think! Well, maybe it is. I don’t know. I’m hoping that, as our supervisor, you can help me. To put it bluntly, he likes to pick on me, and I don’t like it. For example, whenever you give me feedback in the team meetings, John sends me texts afterwards saying things like, “wow, sick burn!” or “yikes! can’t you get it together?!” He always adds an “LOL” at the end, but I don’t think it’s funny. And sometimes, in the breakroom, he moves my stuff around to different tables when I get up to grab a drink or microwave something. He also keeps using the office instant messenger to send me emojis during the day—like poking fingers, waving hands, rolling eyes, or the smiley with its tongue sticking out. I’ve asked him to stop, but he keeps telling me I’m overreacting or that I need to “take a chill pill.” When I walk into a room where he is with other people, they all stop talking and then burst out laughing. I’m really frustrated, Susan, and tired of him making fun of me. It boils down to him being mean and annoying and I’d like it to stop. Can you help?

Sincerely, Potential Lawsuit Waiting to Happen

What is Civility Anyway?

Unfortunately, scenarios like this are all too common in many workplaces. Employers have tried to combat this type of “annoying” behavior by instituting workplace civility policies requiring employees to treat each other with respect, harmony, and pleasantness in the work environment. By printing this expectation in the company’s code of conduct while also weaving the concept into the ideals of daily business practices, it can serve as a valuable deterrent to workplace harassment. 

From a practical standpoint, this is sound reasoning. When employees understand they are required to be polite and courteous to one another, they are more likely do so. And because harassment is the opposite of acting polite and courteous, civility policies may work to stop a serious problem before it even starts.

Civility Rules Took Persona Non Grata Status

However, somewhere along the way, workplace civility rules became legally problematic. This shift might have started with the 1998 U.S. Supreme Court decision in Oncale v. Sundower Offshore Svcs., Inc., in which the Court held that Title VII is not a “general civility code for the American workplace.” Indeed, as Justice Scalia wrote, “petty slights, minor annoyances and simple lack of good manners” are not legally actionable. As a result, employers began to focus their training efforts more on minimizing their own liability than enforcing civility. After all, if simply failing to be polite doesn’t trigger legal liability, why should an employer focus valuable training time on the topic? 

An even more powerful blow to workplace civility rules came from the National Labor Relations Board’s expansive interpretation of the 2004 Lutheran Heritage Village-Livonia decision. The Board determined that a workplace rule would violate the National Labor Relations Act (NLRA) if it could be reasonably construed to prohibit protected activity. The Lutheran Heritage standard began to transform what had been facially neutral workplace policies into unfair labor practices. The Board began finding NLRA violations where there could be some chance—no matter how small—that an employee could construe a company policy as prohibiting activity protected by Section 7. 

For the past several years, employers have been left to perform the mental gymnastics of anticipating how a rule might be construed by an employee to possibly dissuade them from participating in protected activity, no matter how slight the chance. For example, a policy requiring employees to have “harmonious” dealings with their coworkers was suddenly problematic when applied to the scenario that typically occurs when a union forms in the workplace. Because a union election is likely to be disruptive to a workplace, the union-friendly Board concluded that employees might feel they would be breaking a rule by engaging in election-related activity that could bring about disharmony. Fearful of getting swept up in the Lutheran Heritage precedent and violating federal law, cautious employers deleted workplace civility policies out of handbooks. 

The Tide Has Changed   

All of that changed in 2017. First, the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace released a report finding that—spoiler alert—harassment continues to be an insidious and prevalent problem in the workplace. Its findings in terms of workplace civility, however, were troubling.

According to the Select Task Force, much of the modern focus on avoiding legal liability when training managers and workers has had little success as an effective prevention tool. According to the task force, this type of training does little to enforce or reinforce the importance of workplace civility. 

The Select Task Force recommended, then, that effective training should be holistic in nature. It encouraged employers to provide the type of workplace civility training that promotes “respect and civility in the workplace,” instead of focusing specifically on eliminating unwelcome or offensive behavior that is based on characteristics protected under employment non-discrimination laws. The task force also recommended that employers “should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted.” This frank and basic view harkens back to the origins of workplace civility: the novel concept that employees treating each other in a respectful and courteous manner can help to curb workplace harassment. 

The second shoe dropped in December 2017 when the NLRB overturned Lutheran Heritage and gave a significant boost to civility rules (among others). In The Boeing Co., the newly constituted Board highlighted flaws in the reasoning of Lutheran Heritage, which had required employers to all but omit any civility expectations in the workplace. First, the Board recognized that “employees are disadvantaged when they are denied general guidance regarding what standards of conduct are required and what treatment they can reasonably expect from coworkers,” creating unstable and undesirable work environments. Employers may also lose their competitive advantage in recruiting and retaining top talent. 

Next, the Board acknowledged that employers often have legitimate business purposes for establishing civility rules. For example, it pointed to rules aimed at maintaining order in the workplace, and rules meant to protect the company from liability by prohibiting conduct that, if permitted, could result in liability. It found such goals to have reasonable, legitimate business justifications to support a workplace civility policy.

The Board further articulated new guidelines for evaluating employment policies, rules, and handbook provisions. Maintaining rules that require employees to abide basic standards of civility will be considered lawful if: (1) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (2) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Following the Boeing decision, you should feel comfortable reincorporating any of the facially neutral workplace civility policies that you had scrapped over the past few years.

But What About Title VII?

At first blush, it might seem that the shift to focusing on the importance of workplace civility might conflict with Title VII precedent. Indeed, Oncale and its progeny have steadfastly held that Title VII is not a workplace civility code—petty slights and lack of good manners are still not legally actionable. Nothing in the report by the EEOC’s Select Task Force nor the NLRB’s Boeing decision have eroded the bedrock reasoning in these Title VII cases. 

Instead, it appears workplace civility has returned as a prophylactic measure against workplace harassment. Disobeying a workplace civility rule will not automatically be elevated to the level of a Title VII violation. However, knowing that such behavior could be considered a violation of company policy might serve as a deterrent to that behavior. An employee may still be disciplined for policy violations. Having civility rules in place and providing training that focuses on creating a harmonious work environment just might work to stem the more problematic harassment claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sheila M. Willis
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions