Abusive Boss...is it harassment?

The Abusive Boss

The employment at will doctrine is still in effect, and shows little sign of weakening. With reference to the abusive boss, the employment at will doctrine means that you boss does not have to be nice to you. In fact, the boss can be downright nasty and completely unreasonable, provided that the boss's conduct does not start to brush up against laws prohibiting that particular type of conduct. The abusive boss not infrequently wanders into the area of illegal conduct because the abusve boss often thinks he or she is beyond reproach. They are, of course wrong.

Here are some examples:

Recently, I got a new case. Originally, this woman came to me with a discrimination claim. We went over the facts, and it turned out this abusive boss was an equal opportunity SOB, so there was no discrimination claim. But, I found out that the boss never paid this woman, a secretary, overtime, and she was putting in a lot of overtime. There was no discrimination claim, but I believe there is a very strong claim for unpaid overtime under the Fair Labor Standards Act. And, believe it or not, this boss is a partner in a very large law firm. All other secretaries in the firm are apparently paid overtime.

I have heard of many instances of abusive bosses withholding paychecks as a means of punishing or compelling employees to do something. This type of behavior can often violate New York State law, which basically requires employers to pay their employees promptly. You can go to the Department of Labor, or even court, with a complaint.

I would watch out for any instances of the abusive boss withholding benefits you have earned, including vacation, medical benefits, and sick leave. There isn't necessarily a violation of law there, but there might be.

Now, I find abusive bosses like to pick out some personal charactistic about an employee, and abuse that employee based on that characteristic. Here, the abusive boss can get very close to violating the anti-discrimination laws, but whether there is actually a violation will depend on the details of the conduct and its frequency. So, if the abusive boss starts to pick on you on the basis of a characteristic that points to your race, religions, national origin, gender, age, or a physical or mental defect, then that might amount to illegal harassment.

To illustrate, suppose the boss calls everybody in the office a dummy. In this case, there isn't much that can be done. But suppose the boss attachs the "dummy" comment to a personal characteristic, so that a woman would be called a "dumb bitch" or a Hispanic employee might be called a "stupid spic." Even if he does something similar to everybody in the office, each person might have a harassment claim, provided he does it often enough. And, the behavior does not necessarily have to be as obvious as this example. The key is that there be some tie to a characteristic that is protected by law.

Some remarks might be illegal when directed to some people, but not necessarily when directed to others. Suppose the boss calls everyone a "moron." That is probably not illegal, but it might be if directed to someone who has mental retardation or some other physical impairment which makes them seems slow or less intelligent than others. But, again, the details might be important.

In dealing with the abusive boss, there are also other things to keep in mind, including the anti-retaliation laws, and the National Labor Relations Act. Now, retaliation is not illegal, only certain forms of it are.

Generally, if you have a right protected by law, and you assert it, it would be illegal retaliation if the boss punishes you for asserting that right. For example, let's say your child gets hurt and is taken to a hospital. You take a couple of days off because of that. When you return to the office, the abusive boss screams at you, and fires you. In that case, you might have a claim under the Family Medical Leave Act (provided the employer is big enough, and you have been tere long enough).

Here's another example. Suppose you observe the boss yelling at another employee. That employee complains of discrimination to human resources, but, let's assume, there really isn't any illegal discrimination. You support this employee by confirming that employee's description of the boss's conduct. The boss fires both you and that employee. Both of you have retaliation claims under the anti-discrimination laws, even though there might not have been a viable discrimination claim.

Here's a final example: Let's say there is a problem in the office which is making everybody uncomfortable, for example, the ventilation is bad, it's too hot or too cold. A few of you together go to the boss to complain. He or she goes nuts. Maybe one of you get fired. The rest are subjected to a pattern of sustained abuse. Because you acted together, you might have a claim under the National Labor Relations Act. That is, you might have union-like protections, even though there is no union in your particular workplace. But this will work only if two or more of you work together.

posted by David M. Lira  |  Mar 22, 2002 09:15 AM [EST]