In talking with employees who are having workplace issues, I often use the following diagrammatic illustrations to help them understand what kinds of protection they may be (or, more often, may not be) entitled to at work.
Legal protection encompasses all the laws (federal or state) that protect employees at work. Where state law favors employers, legal protection may be limited to federal law, like Title VII, which protects against discrimination based on characteristics like race, religion, gender, national origin, age, disability, or pregnancy. Legal protection includes laws like the Family Medical Leave Act (FMLA), which covers serious health conditions of qualified employees or covered family members, protects certain service members and their families, and protects those with new children by birth, adoption, or foster. Legal protection further includes laws like the Fair Labor Standards Act (FLSA), which covers overtime and wage-related issues. Basically, legal protection includes any federal (or state) law that protects employees on the job. If an employer violates a law, that law may give the employee the right to sue the employer and get damages.
Employer protection includes rules, regulations, or policies developed by the employer. Rules and policies are not law and may vary from employer to employer. While a rule or policy may look official and seem protective, it is only as protective as the employer allows it to be – the employer can choose whether or not to enforce it. Employers may have rules about workplace behavior, bullying, or zero-tolerance offenses, and may even stress “open door” policies for reporting problems without fear of retaliation, but that’s not always the case. Issues that fall outside legal protection fall within the scope of employer protection, so the employer may choose not to remedy the issue and may even retaliate against the employer who reported the issue. Say that an employer has a “no bullying” policy. If bullying happens but does not qualify as illegal (i.e., it’s not about race, religion, gender, national origin, age, disability, pregnancy or any other federally protected issue), then it falls to the employer to protect the employee, but the employer may choose not to because their anti-bullying policy is not law and they don’t have to enforce it.
Often, an employee is being picked on or mistreated at work for no apparent reason, but even the most miserable workplace environment may not be illegal, as a work discrimination lawyer can explain. If there is no legally protected issue, the law can’t solve the problem. If the employer is aware of the problem but won’t do anything to fix it, then the problem becomes the employee’s to solve. At this point, risks and benefits will need to be examined, and careful consideration should be given to continuing work in an environment that, even if not illegal, is uncomfortable enough to compromise health and well-being – no job is worth that kind of sacrifice.