Unfair but not unlawful:
How the law allows your boss to be a jerk.


Not infrequently I receive a call from a potential client with a jerk-tastic boss.  I empathize because being in an unfair workplace, or being fired unfairly, is painful and … well, unfair.  The problem is that the law often allows your boss to be unfair and even a jerk.  The law only protects you when your boss treats you poorly because of a characteristic about you that the law treats as special.  In plain English, your boss can be a jerk, as long as she’s an equal opportunity jerk.

Let me explain

Most American workers are “at will” employees.  “At will” means you are free to quit your job at any time, for any reason.

  • If you don’t enjoy your job, you can quit.
  • If you get a better offer, you can quit.
  • If you decide you want to stay at home with kids, you can quit.
  • If your boss is a jerk, you can quit.

You get the point.

Sounds great, right?  But wait, it is a two way street.  If you are an “at will” employee, your boss can change your hours, cut your pay, rearrange your job duties, demote you, or fire you, at any time, for any reason, except for an unlawful reason.

What is an unlawful reason?

Federal law and state laws protect employees in a variety of ways.  Employees who blow the whistle on illegal practices at work are sometimes protected.  Also, employees who stand up for their rights, or coworkers’ rights, for wages and working conditions are often protected by their actions.  In addition to what you do that can protect you, sometimes who you are protects you as well.  The most widely known protections are the civil rights laws that protect employees who are discriminated against because of:

  • Age (over 40 years old)
  • Disability
  • Genetic Information
  • National Origin
  • Pregnancy
  • Race/Color
  • Religion
  • Gender
  • Gender Identity
  • Sexual Orientation

Just because you are a member of one of these groups, does not mean that the unfair treatment at work is unlawful.  (If you think about it, everybody is a member of at least one of the classes).  But the bad treatment must be because you are in one of these groups.  For example:

Claire is pregnant and still working full time.  Her boss, Glenda, has always micromanaged Claire’s projects and given Claire bad reviews.  Glenda is also very unfriendly to Claire and constantly changes her work schedule at the last minute.  Claire complains to her coworker Steve, a man, about Glenda’s treatment.  Steve opens up and says “Me too! I don’t think I’ve ever seen Glenda smile at me.  She constantly rides my ass and makes me re-do my work.  I have had to change childcare providers three times because Glenda changes my schedule so much I can’t keep a consistent childcare schedule for my daughter.”

Is Glenda’s treatment toward Claire unlawful?  Or just unfair?  Based on the example above, probably just unfair.

The fact that you’re treated unfairly is typically not unlawful, but the reason your boss treats you unfairly may be.

Equal opportunity jerks

The point of Claire and Steve’s example is that the law often allows bosses to be jerks, as long as they are equal opportunity jerks.  So if you think your boss is being unfair to you, it might be worth it to observe and/or ask how she treats coworkers who are different than you.  If you notice a pattern of treatment toward workers with a certain similarity (e.g., your boss in only a jerk to women) then you might be facing unlawful discrimination.  But if your boss is an equal opportunity jerk it might just be unfair discrimination.

Stinks, I know.

What can you do if you’re being treated unfairly?

The truth is, it will probably be hard for you to tell, especially at first, if you’re being treated unfairly or just unlawfully.  So it can be helpful to keep these things in mind:

Keep notes:

“Little” things often grow into patterns of abuse. Try to keep a record of incidents from the first hint of trouble. It’s never too late to start documenting incidents, meetings, e-mails and other events.  If you’re workplace is bad enough to cause you to seek medical care, record any illnesses, doctor visits or treatments you undergo.  If you eventually need legal help to enforce your workplace rights, your notes will likely help you prove your story.

See human resources

If your work has a human resources department, you may find support there.  But keep in mind that speaking with HR may or may not be helpful because HR represents the company’s interests. But even if you don’t find the support you want, you have created a company record of your complaint.  If the treatment is unlawful and you eventually take legal action against your employer, the fact that you complained to HR typically helps you make your case.

Get an attorney:

If you think you’re being targeted because you stuck up for your or a coworker’s legal rights or because of who you are, consult with an attorney to find out if your employer acted unlawfully.

This website contains legal information, but not legal advice. We recommend you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

If you have a union, your union contract may give you additional rights. Ask a shop steward or representative if you have questions about your rights.