That Can't Be Legal

Everyone gets told this by somebody who loves them.

You describe what's been happening, and your friend or your cousin or your mother listens, and somewhere around the third example their face changes and they say it with real conviction, because they believe it:

"That can't be legal. You should talk to a lawyer."

So eventually you do. And the consultation is short, and it is short for a reason nobody warns you about.

The attorney is not dismissive. She listens carefully, and she asks a few clarifying questions, and then she asks the one that decides everything:

"Do you think this was because of your race? Your sex? Your religion, your age, a disability?"

And you sit with that for a second, because you have been turning this over for two years and you genuinely do not know. Maybe. Some of it, possibly. You were the only one in the department who looked like you, and you've wondered. But you cannot prove what was in anyone's head, and if you're honest, the thing you actually believe is simpler and harder to say out loud.

I think she just decided she hated me, and everyone else went along with it.

There is a pause on the line.

Because what you have just described, in most of the United States, in 2026, is lawful.

Every school in America has a code of conduct, and by nine years old you have absorbed its central premise so completely that you will never think to examine it.

The poster in the hallway. The page at the front of the handbook that nobody reads. Be respectful. Treat others with kindness. Whatever else it teaches, it teaches this: cruelty itself is against the rules. Not cruelty toward certain people. Not cruelty for certain reasons. The meanness is the violation. That's the whole architecture, and it is the first legal system any of us ever lives under.

Then you graduate into a country whose employment law does not contain that rule anywhere.

Here is the thing to understand, and it is not a loophole or a failure of drafting. It is the design.

American employment law does not prohibit cruelty. It prohibits discrimination.

Title VII of the Civil Rights Act, and the statutes built alongside it, protect categories: race, color, religion, sex, and national origin, with age and disability covered by their own laws. The trigger is never the severity of what was done to you. The trigger is why. A hostile work environment claim requires that the hostility be because of a protected characteristic. Without that link, the conduct can be relentless, documented, and devastating, and it will fall outside the statute entirely.

Which produces a consequence that sounds like a joke and is not.

There is a line of federal cases known informally as the "equal opportunity harasser" doctrine, and it holds roughly this: a supervisor who harasses men and women alike has not discriminated on the basis of sex, because he treated both sexes the same.

In Holman v. Indiana, decided by the Seventh Circuit in 2000, a supervisor sexually harassed both a husband and his wife, who worked for the same employer. Their claims were dismissed. The court's reasoning was that conduct inflicted on both sexes, or inflicted regardless of sex, sits outside the statute's reach. In Lack v. Wal-Mart Stores, the Fourth Circuit reached a similar result the following year, describing a supervisor whose vulgarity made him, in the court's phrase, obnoxious to men and women alike.

An employer reads that differently than you just did. Under this reasoning, being cruel to everybody is safer than being cruel to one group. Distribute the abuse evenly and you have not violated the statute. You have simply been an unpleasant person, which Congress did not make illegal.

Now the qualification, and this one matters.

The doctrine is contested and it is eroding. Courts have split on it, several have rejected it, and there is a serious argument, laid out at length in the ABA Journal of Labor & Employment Law, that the Supreme Court's 2020 decision in Bostock v. Clayton County implicitly abrogates it, because Bostock demands that courts ask whether each individual plaintiff was harmed because of sex rather than comparing aggregate treatment between groups. Anyone telling you the equal-opportunity-harasser defense is settled law is overstating it.

But notice what survives the qualification entirely. Even in a court that throws the doctrine out, the plaintiff still has to prove the mistreatment was because of a protected characteristic. The debate is about how you analyze that question, not whether the question is the gate. And for the person whose honest answer is I think she just hated me, the gate is closed either way.

The United States is not the default here. It's the outlier.

Sweden wrote the world's first specific workplace-bullying regulation in 1993, placing affirmative duties on employers to detect and address it. The Netherlands followed in 1994, then a wave through the early 2000s took in Luxembourg, Ireland, Belgium, Finland, and France, which in 2002 wrote harcèlement moral into both its labor code and its penal code. Quebec created a psychological harassment right in 2004. Australia opened a national anti-bullying jurisdiction in 2013.

Enforcement varies enormously and several have been criticized as more symbolic than effective. But they share a premise the American statute does not contain: that a worker has a right to be free from abusive treatment as such, without first establishing which demographic box it was aimed at.

In the United States, the vehicle for that idea has been sitting on the table for twenty-three years.

The Healthy Workplace Bill was drafted by David Yamada, a law professor at Suffolk University, and would let employees sue for abusive workplace conduct regardless of protected status, with remedies including reinstatement, back pay, and damages, alongside a defense for employers that maintain and enforce genuine preventative policies.

California introduced it first, in 2003. Since then some version has been introduced in 32 states.

It has passed in zero of them.

California and Utah have enacted training requirements, which is not nothing and is also not a right of action. The only jurisdiction in the United States with a general workplace-bullying law on the books is Puerto Rico, whose Act 90 took effect in August 2020. It prohibits malicious, repetitive, abusive conduct unrelated to legitimate business interests, it requires no protected class, and it obliges employers to build internal complaint mechanisms.

One jurisdiction. Thirty-two states have looked at this and declined.

Which raises the obvious question, and the answer is not the cynical one people expect.

Public opinion is not the obstacle. In the Workplace Bullying Institute's 2024 Zogby survey, 87% of respondents supported the proposed Workplace Bullying Accountability Act, Yamada's newer approach built around an employer duty of care. Support ran 82% among conservatives and 92% among liberals, 84% among Republicans and 92% among Democrats. Only 8% thought existing law was adequate. You will struggle to find another policy question in American life with that shape.

So what stops it? Several things, and at least two of them are legitimate.

Employer associations lobby against it, consistently and effectively, which is unsurprising and is what such organizations exist to do. But there is also a real drafting problem that honest people worry about: "abusive conduct" is genuinely harder to define in a statute than "discrimination because of race," and a poorly drafted version would generate litigation over ordinary management. Demanding deadlines. Critical feedback. A supervisor who is simply difficult to work for. Those concerns are not manufactured, and the bill's own drafters have spent two decades trying to write around them.

And then the quiet one, which is neither cynical nor noble. No legislator's career has ever been made by passing this. It has a huge, diffuse, unorganized constituency and a small, concentrated, well-funded opposition, which is the classic profile of a policy that polls at 87% and never reaches a floor vote.

The hole in the law is not an accident, and I think it's worth saying clearly, because the temptation is to read it as neglect.

Title VII was written to dismantle segregation in American employment. That is what it was for, and by that measure it is one of the most consequential statutes in the country's history. It was never designed as a dignity guarantee. It was designed as an anti-discrimination instrument, and it does that job.

We have spent sixty years asking it to do a different job, and then treating its failure to do so as a betrayal rather than as the predictable result of using a tool for something it was not built for.

Nobody mentions that the handbook's rule expires. So people carry its premise into adulthood, and when it fails them they conclude they must have misunderstood the facts of their own case.

They understood the facts. They misunderstood the statute, and so does nearly everyone, including the friend on the phone who was so certain.

So, the question.

You have almost certainly said that can't be legal to someone at some point, and meant it as comfort.

What would you have to believe about your own country for that sentence to be true?

Sources

• Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000); Lack v. Wal-Mart Stores, Inc., 240 F.3d 255 (4th Cir. 2001). Discussion and critique, including the argument that Bostock v. Clayton County, 590 U.S. 644 (2020), abrogates the doctrine, in McLean, "Equal Opportunity Harasser" Doctrine: Flawed, Pernicious, Abrogated, ABA Journal of Labor & Employment Law, vol. 35 no. 3.
• Healthy Workplace Bill, drafted by Prof. David C. Yamada, Suffolk University Law School. First introduced in California in 2003; introduced in 32 states; enacted in none. California and Utah have adopted training requirements only.
• Puerto Rico Act 90 of 2020, effective August 7, 2020. Prohibits malicious, repetitive, abusive workplace conduct with no protected-class requirement. Analysis via Jackson Lewis.
• International comparison: Sweden's Ordinance on Victimization at Work (1993), the Netherlands (1994), France's harcèlement moral provisions (2002), Quebec (2004), Australia's Fair Work Commission anti-bullying jurisdiction (2013). Overview via international workplace bullying legislation summary.
• 2024 WBI U.S. Workplace Bullying Survey. Zogby Analytics, n=1,024 U.S. adults, September 23–25, 2024, margin of error ±3.1 points.

This piece describes the general shape of U.S. employment law and is not legal advice. Protections vary by state, and anyone weighing a claim should consult an employment attorney in their jurisdiction.

Identifying details throughout this series have been removed or changed.