Each year the EEOC closes more than 100,000 cases. However, only 18% of complaints ever resolve in either financial reward or a change in work conditions. Part of the reason for this is due to the indisputable reality that workplace harassment is notoriously difficult to prove, and that the burden of proof rests entirely on the accuser. But another component is the unpopular truth that a lot of bad behavior that goes on is perfectly legal. It may be unethical, disreputable, or just unfair, but is well within the confines of the law.
When does it cross the line?
It can be difficult for an employee to distinguish between behavior that, while reprehensible, is legal, and behavior that is outright illegal. Consider the following:
I’m not allowed regularly scheduled breaks.
My company doesn’t offer any vacation time.
I was fired because my boss/coworkers didn’t like me.
I didn’t get the promotion because it went to the CFO’s niece instead.
I was fired and replaced with someone who is paid less than I was for doing the same job.
I’m required to work more than 40 hours per week.
None of these are examples of illegal activity in the workplace. In most US jurisdictions, employers are not required to give workers breaks during their shifts. And in no US jurisdiction is vacation time mandatory—it’s an employee benefit, which means it’s a nice extra. Employment can be terminated at any time for any reason (or for no reason at all), and nepotism, while unfair, is not illegal. As for hours worked, as long as hourly employees are compensated, employers can demand as much of your time as you’ll give them. Exempt (salaried) employees know this story well.
Now, let’s flip the discussion and take a look at some examples of behaviors that are most definitely illegal:
Protected groups at my workplace are denied vacation time. Any employer that does this is likely violating anti-discrimination laws.
I was fired because I am a woman. Illegal, but difficult to prove.
My boss fired me because he said he needed a younger workforce. Employers may not discriminate on the basis of age.
My employer says I can only take off one week following the birth of a child. Possibly illegal. Assuming your employer meets the criteria, you may be eligible for up to 12 weeks of unpaid leave under the Family Medical Leave Act.
The problem with these illegal behaviors is that they often occur subtly. Very few managers are going to say, “You know, Jane, you do a good job, but we think that a guy could do it better.” And that is the uncomfortable fact about illegal behavior and discrimination in the workplace. It’s difficult, time-consuming, and expensive to prove. My best advice is that if you encounter bad behavior in the workplace, document it fully. Record dates, verbatims, and context. Consult a labor and employment attorney if you suspect illegal behavior or discrimination.