A high-profile legal battle between actor Robert De Niro and his former assistant has shone a spotlight on changing workplace mores, even in Hollywood, an industry notorious for volatile and sometimes downright criminal bosses.
A jury awarded the actor’s former assistant, Graham Chase Robinson,, finding that his film production company engaged in gender discrimination and retaliated against her amid allegations that he assigned her stereotypically female work and sometimes berated her. Despite the verdict, however, such cases are often hard to prove, while employees often mistake a boss’ foul temper for discrimination or harassment.
“There’s nothing illegal about being nasty,” said Helen Rella, workplace attorney at Wilk Auslander. “It’s not generally harassment within the meaning of discrimination just to yell at someone. It has to be targeted in discriminatory manner.”
When is yelling discrimination?
If a temperamental boss or manager has a habit of yelling or being rude to everyone who reports to them — regardless of an employee’s gender, ethnicity, sexual orientation or another legally protected attribute — the behavior likely wouldn’t qualify as discrimination under the law.
“If you’re yelling at everyone equally and you’re an equal opportunity yeller, you’re not discriminating,” Rella said. “But if you’re yelling at the women or one ethnic group and not another, then you’re discriminating.”
That can make it difficult for workers who feel like they have been wronged by a manager or company to distinguish between a merely unpleasant work environment and an unlawfully hostile workplace.
“People get confused and use the phrase ‘hostile work environment’ across the board to say they felt uncomfortable in the workplace for any number of reasons,” Rella explained. “But in reality is it has to be targeted harassment and not just you’re nasty and people don’t like you.”
A boss could be fired for behavior that violates company policy, but that doesn’t mean an employee would prevail if he or she were to sue in court.
“There are plenty of not nice people in the world, and if you got to sue everyone who is not nice the court system would be overrun,” Rella added. “Laws aren’t to protect someone from working for someone mean — they’re meant to protect against someone who is mean in a discriminatory mode. That’s a point of confusion we see over and over again.”
Instead, laws protect employees against bosses whose behavior meets the legal definition of harassment and other forms of employment discrimination that violate Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), or the Americans with Disabilities Act of 1990 (ADA).
For conduct to rise to the level of harassment, it must be unwelcome conduct based on race, color, religion, sex, national origin, age, disability and other protected attributes, and enduring the conduct must either be a condition of ongoing employment, or the conduct must be deemed pervasive enough that a reasonable person would consider it abusive, according to the Equal Employment Opportunity Commission (EEOC).
“Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people,” the EEOC says.
“Like a dress code”
While yelling at workers might once have been commonplace and generally tolerated in certain types of workplaces, social norms are changing, and it is seldom acceptable anymore, according to workplace experts.
When behavior is not illegal according to state or federal laws, a company’s culture and policies dictate what’s expected of managers, according to Vanessa Matsis-McCready, vice president of HR services and associate general counsel at Engage PEO, a human resources and benefits company.
“At some companies, using curse words is OK and meets the culture. There are others where it’s totally inappropriate. It’s almost like a dress code,” she told CBS MoneyWatch.
Yet as more companies double down on diversity, equity and inclusion initiatives, yelling and other overt forms of hostility or highly aggressive behavior are increasingly not tolerated.
“It used to be that you would have maybe a partner or manager who yelled at everybody regardless of who they were or what they looked like. At one point in time that might have been OK. But as people become more sensitive to bullying, you see less of that because people don’t want to be yelled at in the workplace,” Matsis-McCready said.
That still leaves a gray area between a boss who is nasty or disrespectful and one whose conduct crosses the legal lines. When working as a personal assistant, for instance, it’s often up to employees to decide how much bad behavior they’re willing to tolerate — and at what price.
Brian Daniel, who founded the Celebrity Personal Assistant Network to match job seekers with celebrities and high-net worth individuals, said he wants his clients to clearly outline how tough they plan to be on workers before he makes a match.
When he works with difficult bosses known to cycle through dozens of assistants in a year, they typically offer candidates higher than normal salaries at a rate he calls “combat pay,” a term borrowed from the military to describe compensation for personnel serving in hazardous zones.
“When you have this dynamic with the explosive behavior, it’s my job to find someone that has the temperament to be able to withstand the extreme,” Daniel told CBS MoneyWatch. “We have to categorize these roles into a niche called ‘combat pay.'”
Notably, almost anything goes as long as the employer isn’t breaking the law.
“If they sign up for it and I did my job as an agent and said this guy is going to be yelling at people, he’s explosive, and the assistant is making double or triple, it’s up to the person to decide if it’s OK or not,” Daniel said.
At the end of the day, of course, there are legal lines that can’t be crossed — no matter the salary.
“What’s never going to be OK, regardless of workplace culture, is treating people differently, and that may be only yelling at women,” Matsis-McCready said.