Labor / Employment, On The Job

Why I'm The Inigo Montoya Of Employment Law

The next time someone mentions 'right to work' laws or 'harassment' at work, direct them to this article.

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(Screenshot via IMDb)

If you’ve seen The Princess Bride, you remember Vizzini the Sicilian and his cohort, Inigo Montoya, the Spanish swordsman (“Hello. My name is Inigo Montoya. You killed my father. Prepare to die.”). You’ll also remember Vizzini repeatedly describing unfolding events as “inconceivable.” In one scene, when the Dread Pirate Roberts does not plummet to his death after Vizzini cuts a rope the pirate is ascending on the side of a cliff, Vizzini exclaims, “Inconceivable!”

Inigo Montoya, having just watched the events unfold, turns to Vizzini and says, “You keep using that word. I do not think it means what you think it means.” The line has always been famous among cult followers of the film and even inspired a popular meme.

I think about (and almost use) Mr. Montoya’s line quite a bit because a lot of phrases in the employment law lexicon don’t mean what they sound like they’d mean.

For example, one of the baristas at my favorite coffee shop found out last week that I’m a labor and employment lawyer, and he asked me a few questions. He mentioned at one point that Georgia is a “right to work” state and that, as such, he understood that he has a right to his job and could only be fired for a good and legitimate reason.

I guess that’s a reasonable assumption. The term “right to work” certainly sounds like it has something to do with, well, someone’s right to a job. By logical extension, someone shouldn’t be able to take away that right without a good reason, right?

But that’s not the case.

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Many states have enacted laws or even amended their constitutions to add provisions addressing the rights of workers to be employed without: (1) joining or maintaining membership in unions; or (2) paying dues or fees to unions that represent them for purposes of collective bargaining.

These are “right to work” laws, and they are typically designed to protect employees’ rights to work without affiliating with unions or contributing financial support to unions. These laws do not create a right to a job or a right to only be fired for cause.

More than half of our states have “right to work” laws of some kind. The following 23 states do not have such laws covering private sector employers: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.

Another very misunderstood employment law term of art is “harassment.” In my role as an employment lawyer, I frequently encounter individuals who believe that they have been harassed at work and that their rights have thus been violated.

It may be that someone feels his or her co-worker has been repeatedly (and deeply) insulting to them. It might be that a someone believes his or her supervisor has been bullying him or her. I see allegations of harassment in just about every workplace scenario you can imagine. While I usually don’t doubt the veracity of what individuals are saying, I’m usually skeptical about whether the harassment they’ve experienced is legally actionable.

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Google Dictionary defines harassment as “aggressive pressure or intimidation.” This is the definition most people apply when they’re evaluating whether their rights have been violated at work. And while aggressive pressure and/or intimidation might be present when legally actionable harassment occurs, pressure and intimidation are ultimately insufficient on their own to satisfy the legal definition of harassment.

The definition of harassment applied by courts is typically unwelcome conduct that is based on a protected category. Protected categories include: race, color, religion, gender, pregnancy, national origin, age (specifically, 40 or older), disability, or genetic information.

In addition to the conduct needing to be because of or based on a protected category, unlawful harassment occurs only when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Conduct that’s better classified as petty slights or annoyances, or that are isolated incidents (unless extremely serious, and I mean very serious), will generally not rise to the level of illegality.

These are high legal thresholds to meet, while the satisfying the Google Dictionary is much easier. This has led to a lot of disconnect and misunderstanding. It is also why, I believe, employers win the vast majority of employment cases at the summary judgment stage.

So the next time someone mentions “right to work” laws or “harassment” at work, direct them to this article. This article can play the role of Inigo Montoya and tell them, “I do not think that word means what you think it means.”

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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