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My Boss is a Jerk! But is it Illegal?


So, your superior at work treats you horribly.  If this is you, I am sure some of the following thoughts have crossed your mind: “Something isn’t right about this.  This seems wrong.  Shouldn’t this be illegal?” 

This article is inspired by the numerous calls we receive regarding this very issue.  The start of the typical call goes something like this: “My boss is harassing and discriminating against me.”  To some callers’ surprise, the question that follows is “Why do you think your boss is harassing or discriminating against you?” This question is extremely important because the answer will determine whether or not the superior’s conduct might be illegal.  While some employees might believe a bad boss, a rude supervisor, or a yelling manager constitutes illegal harassment or discrimination, the reality is that such conduct is usually only illegal if motivated by a limited and specific set of reasons.

In California, the issue of workplace harassment and discrimination is governed primarily by the Fair Employment and Housing Act (“FEHA”).  The FEHA protects employees from harassment and discrimination based on any of the following classifications or bases: 

  • Race/color
  • Ancestry/national origin
  • Religion 
  • Age (over 40)
  • Disability, physical or mental, including perceiving disabilities
  • Sex/gender, including pregnancy and related pregnancy conditions
  • Sexual orientation
  • Gender identity or expression
  • Medical condition
  • Marital status 
  • Military or veteran status

Therefore, a supervisor who yells, belittles, demonstrates inappropriate work place conduct, is rude, or engages in obnoxious behavior has not necessarily done anything illegal.  On the other hand, the supervisor who tells sexually explicit jokes, forbids an employee to return to work until they recover 100% from an injury, fires an employee because of religion, or demotes an employee because of age, has likely engaged in workplace harassment and/or discrimination. 

For discriminatory treatment to constitute harassment and the creation of a hostile work environment, the conduct must be severe and pervasive, generally lasting over a period of time.  A single offhand comment is typically insufficient to constitute illegal harassment. 

A different and more common situation presents when a supervisor or manager takes an adverse employment action against an employee because of one of the protected categories listed above.  Such an adverse employment action can include demotion, failing to give an employee a warranted promotion or raise, reducing the employee’s hours, adversely changing the employee’s schedule, or in the worst case, terminating the employee.  To establish a claim for discrimination or wrongful termination under FEHA, the employee must show the adverse employment action was substantially motivated by the supervisor’s discriminatory conduct.  Unlike harassment, the discriminatory conduct can be evidenced by less explicit conduct, such as a passing remark. 

If you believe your superior or employer has engaged in any harassing or discriminatory conduct, contact the experienced employment attorneys at the Law Offices of Corren & Corren. 

California Employment Law Update 2018
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