9 Things Your Boss Can't Legally Do

No one wants to deal with a difficult boss. But there’s a difference between a boss that’s being difficult and a boss that’s breaking the law. As an employee, it’s important to understand the differences between the two—and know what to do if you find yourself in a situation where a manager isn’t just behaving badly, but illegally.

Let’s take a look at nine things your boss can’t legally do, why they can’t legally do those things, and how to take action if your boss is breaking one (or more!) of these laws:

1. Discriminate against employees

The U.S. Equal Employment Opportunity Commission (EEOC) prohibits discrimination—both during the hiring process and employment—based on certain protected classes.

There are nine classes that are legally protected from discrimination: race, color, religion, sex (which includes gender, sexual orientation, and pregnancy status), age, national origin, disability, and genetic information—and bosses can't make any hiring or employment decisions based on those classes.

For example, a boss can’t pass over hiring someone because they’re pregnant. They can’t deny someone a promotion because they’re over the age of 45—and thus, in their opinion, “too old” for the job. And they can’t fire someone because they disagree with their gender identity or sexual orientation. All of those scenarios would be considered illegal discrimination.

In addition to EEOC guidelines, there are a variety of laws, both at the national and state level, that prevent discrimination in the workplace.

“Various state and federal laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, prohibit such discrimination,” says Robert Bird, J.D., M.B.A., a business law professor at the University of Connecticut.

2. Sexually harass employees

Another thing that bosses can’t legally do? Sexually harass their employees.

“Sexual harassment is illegal at a federal and state level across the United States,” says Jennifer L'Estrange, managing director of the New Jersey-based consulting firm Red Clover. “There is a wealth of case law, some of which came to light during the #metoo movement, that prevents employers from harassing, or sexually harassing their employees.”

Sexual harassment is prohibited under the EEOC—and the practice can take a few different forms. The first type of sexual harassment is harassment that creates a hostile work environment. “When an employee experiences sex-based harassment that is so significant it interferes with the ability to do their job, that is an example of illegal hostile environment sexual harassment,” says Bird.

So, for example, if your boss makes graphic sexual comments every day—and those comments make it impossible for you to focus and do your job—that could be considered a hostile work environment.

Another type of sexual harassment is quid pro quo sexual harassment. “Making a term or condition of employment conditioned on sexually related activity is an example of illegal quid pro quo sexual harassment,” says Bird. 

Let’s say you’re vying for a big promotion, and your boss tells you the promotion is yours—if you provide sexual favors in return. That’s quid pro quo sexual harassment—and both of those situations are very, very illegal.

3. ...or otherwise harass employees

Sexual harassment isn’t the only type of harassment your boss can’t legally do.

“Harassment can also extend beyond just sexual conduct,” says Samuel Devyver, co-founder and CEO of workplace compliance training platform EasyLlama. “Any unwelcome behavior related to regionally defined protected characteristics can fall under the realm of workplace harassment.”

Similar to sexual harassment, under the EEOC, a behavior is considered illegal harassment if:

• Enduring the offensive conduct becomes a condition of continued employment.

• The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

So, for example, let’s say your boss is constantly making derogatory comments about your race—to the point where you feel scared at work. That would qualify as “conduct severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive”—and, as such, would be considered illegal harassment.

Now, keep in mind, while harassment is illegal, those protections don’t extend to bosses that are unfriendly, short, or otherwise difficult to work with.

“There is no general law that prohibits supervisors from being difficult to work with or otherwise disagreeable. Employment law is not a civility code,” says Bird. “However, if the harassment is based upon certain prohibited criteria, such as gender or race, such conduct is prohibited under federal law.”

4. Take action against whistleblowers

If an employee sees something illegal and reports it, depending on the situation, they may be considered a whistleblower. And if they are, their bosses legally can’t take action against them.

“A whistleblower is someone who reports illegal conduct at work to a government agency,” says Bird. “Depending on the subject of the whistleblowing activity, the whistleblower may receive protections or benefits”—including protection from retaliation from their employers.

According to Bird, there are a variety of laws in place that protect whistleblowers, including the Whistleblower Act, the Anti-Money Laundering Act, and the False Claims Act. And while these laws protect employees from being fired for reporting illegal activity, it also protects them from other types of retaliation.

“In addition to being fired, unlawful retaliation can also include unwanted transfers, unfavorable job assignments, or denial of promotions,” says Devyver. 

5. Ask prohibited interview questions

“It’s illegal to base a hiring decision based on any of the characteristics protected by Title VII,” says L’Estrange. 

As such, asking potentially discriminatory questions during the interview process is a major legal don’t.

So, what kind of questions are off-limits during the interview process? “Bosses cannot ask about a job seeker’s sexual orientation, religion, pregnancy status, genetic information or disability,” says Devyver.

Some questions that are illegal for bosses to ask during the interview process include:

• Are you pregnant—or planning to become pregnant soon?

• Were you born in the United States?

• How old are you?

• What’s your religion—and are you currently practicing?

• Are you disabled?

6. Mess with your wages

As a worker, you are entitled to be paid for the work you perform—and if your boss tries to underpay you, whether by giving you too low of a wage, misclassifying your job, or not paying you for time worked, they’re breaking the law.

“Wage and hour laws include the Fair Labor And Standards Act, which establishes minimum wage, overtime pay, record-keeping, and more for full-time and part-time employees,” says Devyver.

So, for example, let’s say you’re a non-exempt employee—and you worked 10 hours of overtime in a pay period. Under the FLSA, you’re entitled to one and one-half times your regular rate of pay for those 10 hours. If your boss tries to get out of paying those additional wages (for example, by paying your regular rate of pay for all 50 hours of work of offering to give you 10 extra hours of PTO for the following month), they’re breaking the law.

More things your boss can’t legally do

In addition to the legal no-no’s listed above, some other things your boss can’t legally do include:

• 7. Ask you to work off the clock. If you’re a non-exempt employee, under the Fair Labor Standards Act, your boss legally can’t ask you to work off the clock. For example, if you’re scheduled to work an event from 9 a.m. to 5 p.m., your boss can’t ask you to come in at 8:30 a.m. to set up the event unless you clock in and those hours are accounted for.

• 8. Refuse to provide reasonable accommodations for people with disabilities. Under the Americans with Disabilities Act, employers are required to provide reasonable accommodations for people with disabilities (as long as providing those accommodations doesn’t impose undue hardship on the business’ operations). So, for example, if you have a physical disability that prevents you from standing all day, your boss would legally need to provide accommodation to allow you to work without standing—for example, by providing a desk and chair.

• 9. Prevent you from forming a union. “The National Labor Relations Act also protects the rights of employees to engage in collective bargaining and to form and join unions,” says Devyver—and your boss can’t legally take action to stop you and/or your co-workers from doing so.

What to do if your boss does something illegal

Now that you know some of the things your boss can’t legally do, let’s jump into what to do if you find yourself dealing with a boss that’s acting illegally.

1. Determine your course of action

If you realize your boss is doing something illegal, the first thing you need to do is figure out your course of action—and how to go about reporting the illegal activity.

“Make sure you have read and understand the policies written in your employee handbook,” says L’Estrange. “Your handbook should also include a process for how to report issues.”

Generally, human resources handles these types of complaints. But if your company doesn’t have an HR department, you may need to take the issue directly to leadership.

 “If you don’t have a compliance line or HR role in your organization, you can and should report the issue to a member of the leadership team or the business owner,” says L’Estrange.

Now, one thing to note? While ideally, you’ll follow your company’s established protocols when reporting illegal activity, don’t let those protocols stop you from taking action in a timely manner—particularly if you feel unsafe. If you’re in a situation where your boss is not only acting in an illegal manner, but a potentially harmful one, make sure to report it immediately—even if you’re unsure about the “proper” way to do so.

2. Document everything

If your boss is doing something illegal, chances are, they’re not going to willingly admit to that information. That’s why it’s so important to document everything.

“If an employee believes [they are] the target of illegal employment discrimination, the first thing to do is to keep accurate and detailed records of the discriminatory [or illegal] activity,” says Bird. 

So, for example, if your boss is sexually harassing you, you’ll want to keep a record of every time the harassment happens, including the date, time, what was said/done, and any other witnesses to the harassment.

You should also keep copies of any correspondence that supports your claim your boss is acting illegally. “The employee should also save all emails, text, voicemails, and any other evidence of the illegal activity,” says Bird.

Having these kinds of records is not only helpful for proving your case to your employer, but also if the issue is ever escalated legally.

“Eventually the employee may have to show this evidence to a state or federal employment agency or even a court, so it is important to build those records ahead of time,” says Bird.

3. File a report

You know your company’s procedures for reporting illegal activity. You have a record of your boss acting illegally. Now all that’s left to do is actually report it.

Ideally, once you report the activity, your employer will take the necessary steps to resolve the issue—which, depending on the activity, could range from getting your boss additional training through terminating them for their illegal activity.

“In most cases, human resource staff will be helpful in resolving the issue and ensuring that it will not happen again,” says Bird.

But if you report your boss’s illegal activity and nothing happens? You do have the option to escalate the issue and file a report with the EEOC.

“Whether or not your report is being properly handled by your employer, you also have the option to file a report with the EEOC,” says Devyver. “However, be aware that it is recommended—and in some cases required by law—to file a report with your employer first.”

And if you’re feeling nervous about filing a report on your boss? Take a deep breath. Legally, your boss—or company—can’t take action against you for shedding light on illegal activity.

“Don’t forget that if anyone in your workplace retaliates against you for reporting harassment or discrimination, that in itself is considered discrimination—and is also a reportable offense,” says Devyver. “Almost half of the complaints the EEOC receives are retaliation complaints.” 

Deanna deBara is a freelance writer living with extensive experience covering HR, careers and all things business. In addition to her personal writing, she is also the founder of content marketing agency Everwrite. When she isn't busy crafting her next article, you can find Deanna test driving the latest health trend (current trend: cold plunges) or hiking the Pacific Northwest with her husband and two rescue dogs/best friends, Bennett and Tally.