“Can my boss legally replace me with his girlfriend?”

Question: I’ve been a dedicated and loyal employee for 33 years, with uniformly excellent reviews until four years ago.

At that time my plant manager started showing favoritism to another female employee who reported to me. He stated that he would like to see her in my job position. He started to harass me and threaten my job. This continued to escalate until I told him in front of our HR Manager that he was having an inappropriate relationship with this other female employee. In 2008 I filed a complaint of harassment; this is the only reason I believe I have lasted this long.

My company has recently been bought by another company. During this acquisition over 400 jobs were eliminated nationwide. I believe my boss used this as a reason to get rid of me. I have a log of the events, plus over 75 emails between my boss and the other female employee that show an inappropriate relationship between them.

I’ve been offered six months of severance pay. Should I take it or do I have a case?  

         V.L.
         Kingsburg, California

 Answer: Dear V.L.:

Your letter seems to raise two possible claims: (a) retaliation for reporting your supervisor, and (b) your boss replacing you in order to give a job to his girlfriend.

a. Retaliation requires proving there is a causal connection between (i) your report of harassment to HR, and (ii) your being chosen for job elimination. While it may be that your boss is now retaliating against you for your 2008 report of harassment, without further information it’s not entirely clear that your report of harassment led to your job loss. I know you feel that, but feelings are not sufficient. It’s been at least two or three years since you filed your claim of harassment. That length of time would suggest that retaliation may not be present. What’s really important is “How did your boss treat you for the last two or three years? What’s probably most important is “Did your boss make the decision to eliminate your position, or was that decision made by others?” From what you’ve reported, I don’t see a strong case for retaliation.

b. Believe it or not, as a general rule, there is nothing illegal about a boss making employment decisions based on who he or she likes, or is having a relationship with. I believe most people think that there is some law that says bosses can’t make employment decisions based on “affection.” That is a very widespread misconception. Oh, sure: most companies forbid that, but does that mean that it’s illegal. In fact, it’s perfectly legal.

If you owned a company, and wanted to hire your daughter or son for a job – even as the President of the company – do you think the law should forbid you from doing so? What if you wanted to hire your mother as the Chief Financial Officer; do you think the law should say you cannot do that? Even the United States Supreme Courts has said, essentially, that “People will never stop being human, and part of being human is liking some people better than others. If the Courts had to interview each employee each time an employee thinks a decision was made on who is liked, and who is not, the Courts would have no time to do anything else, ever.”

In the law, a boss cannot say, “If you become my girlfriend, I will give you a raise,” because that is a kind of illegal sexual harassment. However, the law says a boss can say to someone “Since you are my girlfriend, I am going to give you a raise.” Companies are free to forbid that kind of thing, but the law does not.

c. I cannot advise you to take or not take the severance offer, but I can tell you that – from the limited facts you presented – I do not see a strong legal case. What I do strongly suggest is that, if you are considering filing a claim or suit instead of accepting your severance offer, that you consult with an experienced employment attorney near where you live. In all events, it’s always a good idea to consult an experienced attorney to review any agreement you may sign, whether or not it’s a severance agreement. 

If you would like to obtain the names and contact information for at least five experienced employment attorneys in your locale simply [click here].

Hope and trust this helps. While it may not be the information you were hoping to get, it is always important to know the way the law sees things.

My best to you.

          Best, Al Sklover   

©  2011 Alan L. Sklover, All Rights Reserved.