Workplace Bullying vs. Illegal Harassment in New York

Bullying at work is not, by itself, what federal, New York State or New York City anti-discrimination law forbids. Each of those laws asks a narrower question: was the person mistreated because of a protected characteristic, or because the person opposed discrimination or took part in a complaint?⁠^[1][2][3]

That one question is the dividing line this page explains. The same yelling, exclusion or sabotage can fall outside these laws in one setting and inside them in another, depending on why it happened and which law applies.⁠^[1][2]

What this page does and does not establish. This page covers Title VII, the New York State Human Rights Law (NYSHRL), the New York City Human Rights Law (NYCHRL) and a few related statutes, each of which is tied to a protected characteristic or to protected activity.⁠^[1][2][3] This page does not cover whether any other statute bans workplace bullying in general, or common-law claims such as intentional infliction of emotional distress; those are questions for a lawyer.

Why bullying alone is not covered by anti-discrimination law

Federal law. The U.S. Supreme Court has said Title VII does not prohibit all verbal or physical harassment in the workplace and is not a general civility code. The employee has to prove the conduct was discrimination because of a protected class.⁠^[1]

New York State law. The NYSHRL makes harassment an unlawful discriminatory practice when it subjects a person to inferior terms, conditions or privileges of employment because of the person's membership in one or more protected categories. The words "because of" carry the requirement.⁠^[2]

New York City law. Courts applying the NYCHRL have said it also is not a general civility code. The employee bears the burden of showing a discriminatory motive, and it is not enough that the employee has an overbearing or obnoxious boss.⁠^[3]

For the wider version of this point, covering unfair decisions as well as hostile behavior, see unfair treatment versus illegal treatment.

What turns bullying into illegal harassment?

A link to a protected characteristic

The protected characteristics differ by layer. Title VII lists race, color, religion, sex and national origin.⁠^[10]

The NYSHRL lists fifteen: age, race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and status as a victim of domestic violence.⁠^[11]

The NYCHRL's employment provision lists sixteen, including some the State list does not have, such as height, weight and caregiver status.⁠^[12][13]

The full comparison is in the guide to protected characteristics in New York.

The link does not have to be spoken aloud

In a federal sex-harassment case, the Second Circuit said incidents that are neutral on their face may sometimes be used to establish a course of sex-based discrimination, for example where the same person is accused of multiple acts, some overtly sexual and some not. There still has to be a basis to infer that the neutral incidents were discriminatory.⁠^[14]

Under the NYSHRL, nothing in the harassment provision implies that an employee has to identify another person whose treatment can be compared with the employee's own.⁠^[2]

Under the NYCHRL, the employee has to show being treated less well at least in part because of the protected characteristic.⁠^[3]

The State's model sexual harassment prevention policy shows how ordinary bullying behavior can become harassment. It lists sabotaging a person's work and bullying, yelling or name-calling among hostile actions that are sexual harassment when taken against a person because of sex, sexual orientation, gender identity or gender expression.⁠^[15]

How bad does it have to be? The answer depends on the layer

Question	Federal (Title VII)	New York State (NYSHRL)	New York City (NYCHRL)
Does the conduct have to be tied to a protected characteristic?	Yes.⁠[1]	Yes.⁠[2]	Yes.⁠[3]
What level of conduct is needed?	Conduct severe or pervasive enough to alter the conditions of employment and create an abusive working environment.⁠[16]	Inferior terms, conditions or privileges of employment, regardless of whether the harassment would be considered severe or pervasive.⁠[2]	Being treated less well than other employees; severity and pervasiveness go to the scope of damages, not to liability.⁠[4][17]
What falls below the line?	Simple teasing, offhand comments and isolated incidents, unless extremely serious.⁠[18]	The statute makes it an affirmative defense that the conduct does not rise above what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.⁠[2]	Conduct the employer proves was nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.⁠[19]
Which employers are covered?	Employers with 15 or more employees.⁠[20]	All employers within the state.⁠[21]	Generally employers with four or more persons; any employer for a gender-based harassment claim.⁠[22][23]

The current State standard applies to claims that accrued on or after October 11, 2019, the effective date of the amendment that added it. For State-law claims that accrued before that date, courts applied the older severe-or-pervasive test.⁠^[24][25]

Each standard has its own guide: the federal hostile work environment test, the end of the severe-or-pervasive rule for State claims, the City's treated less well standard and the petty slights defense.

When bullying is retaliation

A second route asks why the hostility happened after a complaint, not why it began. All three layers forbid retaliation for opposing discrimination.⁠^[5][6][7] Under federal law, a retaliation claim can succeed even when the conduct complained of was not in fact unlawful, so long as the employee had a good-faith, reasonable belief that it violated the law.⁠^[8] The State model sexual harassment prevention policy says the same about a good-faith belief, and adds that intentionally false charges are not protected.⁠^[26]

• New York State. The NYSHRL names harassment because a person opposed forbidden practices, or filed a complaint, testified or assisted in a proceeding, as an unlawful practice, alongside its separate retaliation provisions.⁠^[2][6]
• New York City. The NYCHRL forbids retaliating in any manner against a person who opposed a forbidden practice. The retaliation need not be an ultimate action or a materially adverse change in terms of employment, but it has to be reasonably likely to deter a person from engaging in protected activity.⁠^[7]
• Federal. Under Title VII, the employee has to show that a reasonable employee would have found the employer's action materially adverse, meaning it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.⁠^[27] The Supreme Court added that reporting discriminatory behavior does not immunize an employee from the petty slights or minor annoyances that all employees experience.⁠^[28]

The complaint has to be about discrimination

Under federal law, the employer has to have understood, or reasonably been able to understand, that the employee's opposition was directed at conduct Title VII prohibits.⁠^[9]

Under the NYCHRL, the Court of Appeals reads the word "opposed" broadly in favor of plaintiffs to the extent reasonably possible. It held that a jury could find opposition where a supervisor did not say in so many words that a subordinate was a discrimination victim, but both she and her superior knew that he was, and she made clear that she thought the superior's treatment of him was wrong.⁠^[29]

More detail is in the guides on what counts as protected activity and what counts as retaliation.

Other laws that can reach bullying behavior

Three other New York State statutes can apply to some bullying behavior. Each has its own limits, and this list is not complete.

• Whistleblower retaliation (New York State). Labor Law § 740 bars an employer from retaliating because an employee discloses, or threatens to disclose, to a supervisor or a public body a practice the employee reasonably believes violates a law, rule or regulation or poses a substantial and specific danger to public health or safety. See the guide to Labor Law § 740.⁠^[30]
• Criminal harassment (New York State). Under the Penal Law, harassment in the second degree covers, among other things, striking, shoving, kicking or other physical contact, or threatening it, with intent to harass, annoy or alarm. It is classed as a violation. This is a different concept from workplace harassment under the anti-discrimination laws.⁠^[31]
• Bias-related violence or intimidation (New York State). Civil Rights Law § 79-n gives a civil action against a person who intentionally selects someone for harm, causes physical injury, or subjects someone to conduct that would be first-degree harassment under the Penal Law, in whole or substantial part because of a belief about characteristics such as race, religion, gender, age, disability or sexual orientation.⁠^[32]

If the bullying ends in a firing or a resignation

New York presumes that employment for an indefinite term is at will, which either side may end at any time for any reason or no reason.⁠^[33]

The Court of Appeals declined to recognize a general tort of abusive or wrongful discharge and said that step should await legislative action. An employer's right to end at-will employment is limited by a constitutionally impermissible purpose, a statutory prohibition, or an express limitation in the individual employment contract. The discrimination and retaliation statutes described above are statutory prohibitions of that kind.⁠^[34][35]

Under federal law, a resignation is treated as a discharge when working conditions became so intolerable that a reasonable person in the employee's position would have felt compelled to resign. The test is objective.⁠^[36]

For unemployment insurance, New York disqualifies a claimant who voluntarily separates without good cause. The Department of Labor's interpretation index records a ruling that being harassed and annoyed by coworkers to such an extent that health is adversely affected may be good cause for leaving.⁠^[37][38]

See the guides on at-will employment, constructive discharge and unemployment benefits after quitting.

Questions that help sort bullying from harassment

These are practical questions, not legal tests. They track the two things the laws above turn on: a link to a protected characteristic, or a link to protected activity.⁠^[2][3]

• Who is targeted? Everyone, or mainly people who share a characteristic?
• What is said or done? Are there comments, jokes, nicknames or assumptions that refer to a characteristic, even occasionally?
• When did it start or change? Did it begin after a complaint, an accommodation request, a pregnancy announcement, a medical leave or a disclosure?
• If you complained, what did the complaint say? Did it describe the treatment as connected to a characteristic, or only as unfair?
• Where do you work, and how large is the employer?

Writing down dates, words used and who was present makes those questions easier to answer later. The guides on documenting workplace harassment and how to report harassment or discrimination go further.