Workplace Revenge and the Equal Opportunity Jerk

Posted by Molly DiBiancaOn September 17, 2013In: Harassment, Harassment, Sexual, Jerks at Work

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Being a jerk is a legal defense, so to speak.  An “equal opportunity jerk” is a boss who treats everyone badly, regardless of race, religion, gender, etc.  If his subordinates sue, alleging an unlawful hostile environment, they’ll likely have trouble establishing that the jerk was more of a jerk to one particular group of employees based on a protected characteristic. 

It is a defense that defense lawyers prefer to not to have to invoke. Nevertheless, when the facts are there, even an unattractive defense can be a winner. Take, for example, the Third Circuit’s decision in Clayton v. City of Atlantic City. 

people backstabberThe plaintiff was a police officer in the Atlantic City Police Department, who alleged that she was subject to the sexual advances of a senior officer.  This went on for a number of years until, eventually, she came under his direct supervision. 

As her supervisor, she alleged, he gave her a less desirable work schedule and singled her out for various minor policy violations.  Another senior officer also disciplined her and reprimanded the plaintiff for other policy violations, which the plaintiff alleged were common practice throughout the Police Department, such as leaving the city limits without permission for lunch and for rolling her eyes during roll call.  She was eventually transferred to a different unit, which resulted in a pay decrease.

The plaintiff alleged that she was transferred because of her gender.  But she also testified to what she described as a “revenge management” culture in the department.  That culture, as she described it, meant that if you were not liked by a superior, regardless of gender, it was common for the superior to attempt to undermine your career.

It was this “culture of revenge” that resulted in the dismissal of the plaintiff’s suit.  The court reasoned that an attitude of “revenge” is not unlawful, provided it is equally applied without regard to race, religion, gender, etc.  Here, there had not been gender discrimination because males and females alike were subject to the punishments of dissatisfied supervisors.

Although this case makes an excellent teaching example, it’s not exactly one I would recommend as "inspirational.”  Equal opportunity jerks may not be in violation of the anti-discrimination laws, but, boy, they sure do get sued a lot.

Clayton v. City of Atlantic City, No. 12-4273 (3d Cir. Sept. 12, 2013).

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