Raising the bar

Civility in today’s workplace

In today’s post-pandemic workplace, the line between innocent banter and illegal harassment can be blurry. Harassment claims under federal and New Hampshire law require a nexus to a protected characteristic — such as race, sex, religion, age or disability — and conduct so severe or pervasive that it creates a hostile work environment. By contrast, workplace incivility includes low-level rude or discourteous acts — such as eyerolling, sarcasm or exclusion — that violate norms of respect, but lack the protected-class element.

On the federal front, the EEOC’s April 2024 Harassment Guidance (its first update in 25 years) underscores these trends. The 150-page directive had initially expanded the definition of discrimination. While it confirmed that targeting someone’s sexual orientation, gender identity or even culturally linked traits (names, hairstyles, dress) is unlawful bias, a recent federal court ruling in Texas found that portions of the guidance relating to sexual orientation or gender identity were unlawful nationwide, and therefore struck those particulars portions.

Nonetheless, the guidance also emphasizes that employers are now held to a higher standard for preventing harassment. Employers must investigate promptly, document complaints and train supervisors to stop harassing behavior. Though this guidance is not law, it provides a road map for best practices.

New Hampshire’s laws generally mirror federal standards. Under NH RSA 354-A, it is unlawful to discriminate against or harass an employee on the basis of age, sex, race, disability, religion, marital status and other protected traits. New Hampshire courts have recognized that harassment because of a protected status is illegal discrimination, and even co-workers or managers who “aid and abet” such misconduct can be held liable. Notably, New Hampshire has recently broadened its protections: as of September 2024, a new law explicitly prohibits bias against employees for wearing “protective” hairstyles (such as braids or locks). In practice, this means employers must review dress and grooming policies to ensure natural hairstyles aren’t unfairly targeted.

To bridge the gap between legality and culture, NH employers should consider refreshing their standards and enforcement in the following ways:

Update Policies and Code of Conduct.

Employers should explicitly prohibit harassment (per EEOC and NH definitions) and consider defining incivility in policies, such as a code of conduct. Such policies can give examples of unacceptable behaviors — ranging from severe harassment to subtle snubs, such as ignoring co-workers or tone policing — and should reflect the latest guidance, such as protected categories like sexual orientation (which is still impermissible under New Hampshire law) and hairstyle.

Conduct Training and Communication.

Employers should provide regular training on both harassment law and everyday civility. Such training can be incorporated into ongoing discussions and reminders to managers and staff that respect is expected. For example, employers should encourage “check-in” meetings and discourage eye-rolling or belittling comments, particularly around any protected characteristics.

Establish Clear Reporting. Employers are encouraged to implement an easy, secure way for employees to report concerns. This can be done by publicizing multiple channels — such as anonymous hotlines, HR contacts, third-party systems — to help ensure that concerns are not dismissed as personality conflicts. Such reporting procedures should emphasize that even incivilities — not only outright illegal harassment — will be taken seriously, particularly if they harm morale.

Model and Enforce Civility. Leaders set the tone. Managers and executives should role-model respectful behavior at all times. This includes promptly addressing uncivil conduct — such as a disrespectful comment and not just the most extreme cases — to signal that petty mistreatment is unacceptable. Consistency is key: Documented warnings or retraining for repeated incivility can show employees that respect is a core value.

Monitor Culture. Employers should consider surveying employees regularly or holding feedback sessions to gauge the climate. These can include brief pulse surveys or “stay interviews” to catch signs of disengagement, burnout or distrust. Employers should review all complaints and investigate patterns (even low-level complaints) to prevent small issues from escalating. Employers should also remain vigilant: When unaddressed rudeness becomes the norm, lawsuits and turnover often follow.

A respectful workplace isn’t just an added benefit; it’s a legal and competitive imperative. By clarifying expectations, training employees and enforcing standards consistently, New Hampshire employers can protect their teams, and their businesses, before watercooler talk turns into workplace trouble.

Brian B. Garrett is a director and member of McLane Middleton’s Employment Law group. He can be reached at brian.garrett@mclane.com.