A high-profile legal battle between actor Robert De Niro and his former assistant has put the 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,, and found 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 difficult to prove, with employees often mistaking a boss’s nasty temper for discrimination or harassment.
“There’s nothing illegal about being ugly,” said Helen Rella, workplace attorney at Wilk Auslander. “Just yelling at someone is generally not harassment in the sense of discrimination. It has to be targeted in a discriminatory way.”
When is shouting discrimination?
If an irascible boss or manager has a habit of yelling or being rude to anyone who reports to them—regardless of an employee’s gender, ethnicity, sexual orientation, or other legally protected characteristic—the behavior likely won’t qualify as discrimination under the law .
“If you yell at everyone equally, and you yell equal opportunity, you’re not discriminating,” Rella said. “But if you shout at the women or one ethnic group and not another, then you are discriminating.”
This can make it difficult for workers who feel they have been wronged by a manager or company to distinguish between a purely unpleasant work environment and an unlawfully hostile workplace.
“People get confused and use the term ‘hostile work environment’ across the board to say they felt uncomfortable in the workplace for a number of reasons,” Rella explained. “But really, it has to be targeted harassment and not just you being ugly and people not liking you.”
A boss can be fired for behavior that violates company policy, but that doesn’t mean an employee would win if he or she were to sue in court.
“There are plenty of non-nice people in the world, and to sue everyone who is not nice would overwhelm the legal system,” Rella added. “Laws aren’t to protect someone from working for an evil person — they’re meant to protect against someone who’s evil in a discriminatory state. It’s a point of confusion we see over and over again.”
Instead, laws protect employees from bosses whose conduct 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 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 characteristics, and enduring the conduct must either be a condition of continued employment, or the conduct must be considered extensive enough that a reasonable person would consider it abusive, according to the Equal Employment Opportunity Commission (EEOC).
“Minor trifles, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of unlawfulness. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people,” EEOC say.
“Like a dress code”
While yelling by workers might once have been common and generally tolerated in certain types of workplaces, social norms are changing and it’s rarely acceptable anymore, according to workplace experts.
When conduct is not illegal under state or federal laws, a company’s culture and policies dictate what is expected of managers, according to Vanessa Matsis-McCready, vice president of HR services and associate general counsel at Engage PEO, a human resources and advantage.
“In some companies, using profanity 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.
But 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 might have a partner or manager who yelled at everyone, no matter who they were or what they looked like. At one point that might have been OK. But as people become more sensitive to bullying, see less of it 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 behavior crosses legal lines. When working as a personal assistant, for example, it is often up to employees to decide how much bad behavior they are willing to tolerate – and at what cost.
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 describe how tough they plan to be on workers before he makes a match.
When he works with difficult bosses who are 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 who serving in dangerous zones.
“When you have this dynamic with the explosive behavior, it’s my job to find someone who has the temperament to withstand that extreme,” Daniel told CBS MoneyWatch. “We need to categorize these roles into a niche called ‘combat pay’.”
In particular, almost anything goes as long as the employer does not break the law.
“If they sign up for it, and I did my job as an agent and said this guy is going to yell at people, he’s explosive, and the assistant does a double or triple, it’s up to the person to decide if it’s in order or not,” said Daniel.
In the end, of course, there are legal limits that cannot be exceeded – regardless of the salary.
“What’s never going to be okay, regardless of workplace culture, is treating people differently, and that can only be yelling at women,” Matsis-McCready said.