The aggregate differential impact of the societal phenomenon of workplace bullying along race and gender lines is well-documented.
In the U.S., men perpetrate sixty-nine percent of workplace bullying, thirty-nine percent targeting women and thirty percent targeting other men. Women perpetrate the other thirty-one percent of it, twenty-one percent targeting other women and ten percent targeting men. (See http://www.workplacebullying.org/2014-gender/)
About a third of all workers of color have been directly bullied, compared to under a fourth of all white workers.
This means that, collectively, U.S. employers massively discriminate against women and people of color by failing to eliminate workplace bullying.
But is a specific act of bullying itself an act of discrimination by race or sex/gender?
Consider the equal opportunity bully. For every worker of color he bullies, he carefully selects a similarly situated white worker to bully in the same way. For every woman co-worker he bullies, he carefully selects a man to bully in the same way. Is he discriminating by race? Is he discriminating by sex/gender?
Since he is subjecting all his victims to the same ill treatment, it could be said that he is not guilty of differential treatment of them. But we’ll return to that question in a moment, after we explore whether his actions have differential impact on his victims.
A punch to the stomach with equal force and surprise to someone wearing armor and someone wearing a cotton shirt will obviously cause far more harm to the latter. The same act of social workplace bullying done to two workers with vastly different degrees of social, financial, legal and emotional support will also cause far more harm to the one with much less support.
Since historically stigmatized and denigrated categories of people all suffer disadvantage in social, financial, legal and emotional support as a result of that historical treatment, its on-going practice and the likelihood of resumption or renewal of its practice, the bully’s actions have more severe impact on them than on those not in those categories.
Now suppose a female victim happens to be wealthy enough to afford top-flight legal counsel or to quit her job without loss to her basic standard of living. She may ultimately suffer the same individual harm as the financially strapped male victim. But in respect to the impact of sex/gender discrimination in society, she is still more negatively harmed than he. Most likely the man’s financial straits are due to his belonging to some other historically oppressed category, so the greater impact on him would be due to that oppressed status of his. The bully would then be guilty of perpetrating discrimination against both the man and the woman on the basis of differential impact on each of their historically oppressed conditions.
Now consider also that any reasonable worker in today’s workplace is expected to have a basic understanding of discrimination against historically oppressed categories of people. The bully thus can be assumed to know that historically oppressed conditions place individuals at heightened peril under any attack on their well-being. The bully must be held accountable for his foreknowledge of his victims’ differential vulnerability based on those historical conditions.
So when he applies equal force to his “punches,” he actually is guilty of knowingly inflicting greater harm to each on the basis of each’s historically oppressed condition, or at least knowing there is a substantial likelihood of greater harm.
Thus the theoretical equal opportunity bully actually is guilty of differential treatment of his victims, if he was mentally competent at the time of his actions.
Now suppose he adjusts his punch force to offset the effect of historical vulnerability based on each victim’s category membership. Suppose, against all likelihood, that he succeeds in actually balancing out the real measurable impact on all his victims. He has now very deliberately tailored his bullying of each to achieve true equal opportunity bullying, but only in its aggregate impact. He is still guilty of inflicting differential impact with respect to each axis of historical oppression.
And he is still guilty of differential treatment, because he has applied unequal force to each victim with the express intent of avoiding the added liability of having inflicted aggregate differential harm to them, and he has done so with a very conscious and deliberate understanding of the differential impact his actions will have on each based on their historically oppressed conditions.
Thus any act of bullying, no matter how it is done, is always discrimination as differential treatment, and as axis-specific differential impact, and is almost always so in its aggregate differential impact.
Derek Bell has famously attributed the state interest in extending civil rights protections to blacks as protective imitation of communist egalitarian rhetoric on race relations. If the legislative intent of civil rights law is not really to ensure substantive equality for historically subordinated citizens in their essential participation in civic life, then government-funded organizations cannot rely on civil rights law as a guide for providing a minimum standard of conduct for its agents and affiliates in the execution of its operations. It must find a standard for its policies, protocols, procedures and practices that aligns with a genuine intent to remove state power from its current perch on the historically privileged side of each scale of justice that has been skewed already by the historically unjust accretion of category-differential social power.
One step in that direction would be for all government-funded organizations to recognize, as a matter of policy, that bullying is always in violation of the organization’s anti-discrimination policy, whether or not it can be successfully argued in court to be illegal discrimination under current applicable statutes and case law.