Europe’s Class Act

Columbia Journal of European Law
Vol. 9, No. 2, Spring 2003, New York

In June 2003, Steven Horkulak, previously a well-paid senior director of City of London money brokers Cantor Fitzgerald, sued his former employers. He argued that company president and New York native Lee Amaitis had made workplace conditions so "intolerable" for him that he had to resign from the company (which operates in the United States, Canada, Europe, and Asia) in mid-2000. According to Horkulak, his former boss had verbally abused him with shouting, threats, and foul language. Horkulak claimed that the treatment also drove him to drug abuse and drinking.

Amaitis seemed puzzled at the legal challenge to his management style. "Our business started with people shouting at each other in a pit and [it] still continues in Chicago," he told the High Court in London, as reported in the Guardian. "You scream and shout — and that’s how you get your business up." The court disagreed: In July 2003, Horkulak won nearly £1 million (about $1.6 million) in damages and costs from his past employer.

The Cantor Fitzgerald case exemplifies the challenges that international managers can face when working for multinational companies. Under U.S. employment law, for instance, Horkulak would have had little case. However, British labor law gave him a stronger case, due to principles that entered into British law in 1975. Writing in a recent issue of the tri-annual Columbia Journal of European Law, New York law clerk Gabrielle S. Friedman and Yale University Law professor James Q. Whitman explain how and why U.S. and European laws on workplace harassment differ. Their article, "The European Transformation of Harassment Law: Discrimination versus Dignity," draws upon cases from Germany, France, and Sweden. They find that differences in workplace regulations are rooted as much in history and culture as in strict legal interpretations.

In the United States, the authors explain, laws against workplace harassment have focused on the sexual harassment of women or minorities by their superiors as a means to prevent discrimination in hiring and promotion. Essentially, U.S. courts consider harassment within an existing employer-employee relationship as an issue that mainly affects advancement possibilities; they are less concerned with employees’ right to dignity in their existing roles.

Moreover, U.S. law is set in an economic environment where people change jobs frequently and where employers face few restrictions in dismissing workers. By contrast, European workplace harassment law, which applies to all employees, has at its heart the notion of human dignity. It thus encompasses not only sexual harassment, but also workplace bullying and protection against the actions of co-workers as well as superiors.

Friedman and Whitman argue that these trans-Atlantic differences flow from the contrasting origins of anti-harassment legislation in the United States and Europe. U.S. anti-sexual harassment legislation evolved from the civil rights movement and the effort to redress the heritage of slavery. European employment law also embraced the concept of protection against harassment, but in a context where the historical injustice was not one of slavery, but rather one of class. And in a labor market such as Europe’s, where job tenures are often long and employees don’t change jobs as regularly, legal protection at the point of hiring is considered less valuable than protection during the course of an ongoing employment relationship.

Friedman and Whitman’s argument rests on the premise that a country’s laws do not operate independently of the nation’s economic and social context. Indeed, European labor law implicitly awards the employee some "ownership" of his or her job. Some economists argue that one of the problems of European employment law is that it protects incumbent workers at the expense of job seekers and therefore implicitly favors older workers over younger ones and men over women.

The authors neglect the role of political consensus both in legislating and in applying labor laws. In Europe, if laws dealing with workplace behavior do not apply equally to all workers, they will likely not garner support from trade unions; hence, overall political support would be minimal. Singling out sexual harassment and ignoring others would imply that the dignity of women is a higher value than that of men. Meanwhile, the U.S. political consensus stresses that protection should apply only to underrepresented groups, in order to redress past injustices. The notion that one must "make one’s own way" remains central to U.S. culture and is reflected in U.S. law.