What’s the Difference Between an Awful Boss and One Who Legally Harasses You?


Judges are busy people. As much as they may have wanted to make the world a better place when they started out, that impulse was probably beaten out of them after a few months on the bench. As a practical matter, the legal system is swamped with lawsuits, and the behavior at work that’s subject to discrimination law is pretty narrow.

Judges will dismiss cases that just cover run-of-the-mill “my boss is making my life a living hell” allegations, unconnected to illegal harassment or some form of illegal discrimination, unless the facts show that a common law cause of action may apply.

But regardless of whether a judge would consider the allegations illegal, you’re a human being, and you should be treated as such. Talk to your boss. Let him or her know that this is a problem, and tell him or her that this is not the way to get the best work out of you. Maybe the madness will end. If not, talk to human resources (see below).

The SOB Defense

The ways a boss can make you miserable are only limited by his or her imagination. Yelling, screaming, humiliating you publicly, subjecting you to constant scrutiny, setting expectations that you will work and be available seven days a week at all hours of the day or night, lying, and playing one employee against another are all options. Compounding this, your boss might suffer from a personality or psychiatric disorder, abuse substances, and/or, not surprisingly, see abusing employees as a means of stress relief because his or her personal life is a mess.

A potential defense to a discrimination complaint in this kind of case is that the boss makes everyone’s life miserable. No matter your sex, race, age, color, religion, disability, etc., this person is an SOB to everyone. If that can be proven, it can be a valid defense to a discrimination complaint. Even though it may not be such a good thing when the person is standing before St. Peter at the Pearly Gates, the judge may dismiss your complaint.

Illegal Harassment

As far as harassment is concerned, there’s a fairly high legal bar that needs to be passed to have a successful case. To be considered illegal discriminatory harassment, a plaintiff would need to prove two things:

  1. unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), or a prior complaint of discrimination or disability; and
  2. suffering caused by the conduct has become a condition of employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Harassing actions can include offensive jokes, slurs, epithets or name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, a display of offensive objects or pictures, and interference with work performance. There generally need to be multiple incidents, though if an incident is serious enough (like a physical touching or threats), a few instances or even a single occurrence could break the law.

To have a legal claim, it need not be your boss harassing you, but the boss must be aware of it and not do anything to stop it. You could be harassed by a co-worker, a boss from another department, a contractor, or even a customer.

Your Friend, the Retaliation Claim

If you believe you’re being harassed, tell the harasser to stop. If that doesn’t work, look to your employee handbook to find out the process to report harassment. If you believe the harassment is due to a protected status (your sex, race or color, age, religion, etc.), include that as part of your complaint, and explain why. You should also call our office to learn about your rights.

Your situation genuinely may not be based on your protected basis: you may just have a jerk in your office. However, if you reasonably thought that you were harassed based on a protected status, and your boss or your employer takes a negative action and retaliates against you because of the complaint, you may have a legitimate claim of retaliation. Retaliation can come in many forms:

  • harassment, including verbal or physical abuse;
  • a pay cut;
  • a demotion;
  • termination, whether by being fired or laid off;
  • a reprimand or a performance evaluation that is lower than it should be;
  • a transfer to a less desirable position; or
  • increased scrutiny.

Common Law Causes of Action

In addition to state or federal statutes prohibiting discrimination or retaliation, other legal claims are based on common law, the law that’s been developed by judges over the years through their cases. What needs to be proven for a common law cause of action to be successful can vary from state to state. On the upside, a plaintiff need not connect the action to a protected status (so the SOB defense wouldn’t apply), but the harasser’s actions and their impact on you still need to be severe.

A lawsuit can claim that the person intentionally meant to inflict emotional distress on the plaintiff, that he or she negligently inflicted emotional distress, or both. Generally, intentional infliction of emotional distress requires proof of willful or reckless conduct of such an outrageous character as to cause severe emotional distress. The plaintiff needs to prove an emotional injury so severe that no reasonable person could be expected to endure it. Negligent infliction of emotional distress, on the other hand, requires clear and convincing evidence of symptoms or manifestations of a physical injury, not just of an underlying emotional disturbance. Physical injury could include migraine headaches, suicidal tendencies, or self-inflicted cutting wounds.

Often these causes of action are both asserted because the harassment resulted in emotional distress and created physical manifestations.

To Quit or Not to Quit, That Is the Question

As far as the law is concerned, a lawsuit against a harassing employer is generally simpler and easier if the employee is fired or laid off. If you quit (a “constructive discharge”), you would need to show that a reasonable person in your situation would be compelled to quit to be awarded damages for lost pay. You should file a complaint about the harassment and give the employer a chance to correct the situation before you quit, unless the activities are well known and management hasn’t done anything about it.

If your work situation has you so stressed out that you’re suffering physical or psychological problems, see a health care provider. Get your situation documented. If the professional thinks that you genuinely risk your health by continuing to work, have him or her document that also.

Summing It Up

Your boss may be awful, but that doesn’t necessarily mean that any law is being broken or give you a basis for a lawsuit. However, there are boundaries that truly terrible bosses can cross, and you may have valid reasons, based on statutes or judge-made common law, to file a legal action for compensation. Before you do, be sure to take these steps:

  • Document what’s going on, including any witnesses, times, dates, and locations.
  • Keep copies of any memos or e-mails you write to the harasser or to human resources to complain about the harassment.
  • Write notes about any conversations you have concerning your complaint, any investigation, and any discussions concerning the investigation’s findings.

If your boss is making your life miserable to the point where you think legal action may be justified, contact our office so we can talk about what you’ve been through, what laws may apply, and what your best options are moving forward.