Many of our callers report being tortured at the hands of a bad boss. They call to ask us if they have a legal right to better treatment, or to get their job back after they have been fired. Often we must deliver bad news. The answer is usually no. In this blog, we will try to explain exactly what “harassment” means in a legal context. We will also try to lay out what is not harassment, so that readers can get a better understanding of what is meant by the term “harassment” as it applies to your legal rights in employment. It’s all about whether or not there is discrimination behind the nasty behavior.
Understanding Unlawful Harassment
In the course of most careers, almost all of us run across a terrible manager or boss. He is unreasonable. He doesn’t explain what he wants you to do and then he criticizes you for not reading his mind and doing what he expected. We all know “that guy.” But here’s the thing, we have no protections under the law from someone who is just a lousy boss. Unlawful harassment must come from a place of what lawyers call “discriminatory animus.” It isn’t enough that your boss yells at you. It isn’t enough that your boss lies about whether or not you finished a project on time. He must have done so because you are a member of a protected class.
What is a Protected Class?
Federal Law (Title VII of the Civil Rights Act) defines the following as protected classes:
- national origin
- sex (incl. pregnancy, childbirth and related medical conditions)
- age (40 and older)
- citizenship status, and
- genetic information
California state law protects the foregoing, and adds protections for:
- marital status
- sexual orientation
- gender identity and gender expression
- medical condition
How Do I Know When it’s Happened to Me?
When one is being verbally or physically demeaned in the workplace, it’s difficult to keep one’s cool, never mind think clearly about the subtleties of discrimination that may motivate such behavior. It is important however, that employees understand their rights surrounding various types of discrimination.
- Only discriminatory harassment is actionable. It is not enough that your boss yells at you for not completing a project. It is not enough that you did, in fact, complete the project, and she is not telling the truth. She must be doing so because she is singling you out as a member of a protected class: for example, if she adds a comment that belittles your race, or suggests you are unable to complete your work due to your religion. In this event, you may wish to begin to document the things she says. to see if there is a pattern of discrimination.
- Bad management alone is not actionable. A manager who makes stupid decisions, and is otherwise completely incompetent, is not breaking any laws. He can ask you to do things outside the scope of your employment. He can ask you to fetch him lunch, as obnoxious as that may be, unless he only asks you because he thinks “women should be the ones to get the food.” Repeated comments along those lines might support a claim of gender bias discrimination.
- Employees may be fired for “no reason.” Many of our callers believe they have been wrongfully terminated if their boss had “no reason” to do so. In California (as in many other states) an employer does not need a reason to fire anyone. That’s essentially what “at-will” means. They can fire you for being late, but they can also fire you if you were on time every single day.
- Employees may not be fired for a discriminatory reason. If your boss says she is letting you go, and you suspect it is due to a discriminatory reason, then that would not be lawful. Document any history of comments or actions to support this belief, and contact an employment attorney.
If you’re looking for more information on documenting your potential claims, we have written a number of blogs on the topic, including one on racial discrimination and sexual harassment. We have also provided additional scenarios to illustrate the different ways to assess the legalities of your particular situation. Bottom line: If your boss just doesn’t like you? Get another job. If your boss doesn’t like you because you’re a woman… you should probably call an employment lawyer.
LAZEAR MACK LLP
436 14th Street, Suite 1117
Oakland, CA 94612