Things You Should Know: Coded Language, Consent with Coercion, & the “Asshole Defense”

Feb 6, 2019 · 7 min read

An unfortunate reality in the workplace is that it is completely legal for your manager, CEO, or colleague to treat you terribly.*

But there are many grey zones where it’s difficult to see clearly — and even if your situation is not actionable, you can still fight for yourself and disentangle from the environment in a way that feels strong, honest and empowering.

*Unless they violate your physical space, or clearly discriminate against you because of your race, gender, age, or disability.

We proposed a few employment scenarios to New York-based employment attorney Vincent White. Vincent White is one of the founding members of NYC Job Attorney, and his efforts along with his partners’ drove that firm to become one of the largest dedicated plaintiff-side employment firms in New York.

Vincent has practiced before the Federal Courts including the Bankruptcy Courts, both Civil and Criminal State Courts, the New York State Court of Claims and the State’s Administrative Courts. In addition, Vincent has garnered settlements for his clients at mediations before the Equal Employment and Opportunities Commission and the New York State Division of Human Rights.

Vincent walks through the following situations with us and points out the signs of truly illegal behavior— and what avenues you can pursue when you encounter hostile, toxic, exploitative, or confusing work scenarios.

Simone: A male manager continues to tell his female subordinate that she is acting “emotional.” She is frustrated and thinks this is preventing her from getting a promotion.

Vincent White: Telling a woman she is “emotional” is the definition of what attorneys call “coded language.” It’s similar to calling an African American man “aggressive” in the workplace, or telling an older employee that they “probably lack computer skills.”

If it’s a stray comment — meaning, it’s only happened once — it’s likely not actionable. But consistent comments like this over time may truly impact your career or your chances of promotion.

A constant claim that “you’re being emotional” could be meant to isolate you, to shut you down. Every time you’re mocked, isolated, or not considered — that could really add up and harm your career trajectory, minimizing your contributions over time.

At this point, you need to immediately start documenting. Document the times you weren’t invited to meetings. Document the entire context: who was there, how it made you feel, and what decision-makers were present.

If it becomes unbearable, you can schedule a free consultation with an attorney. There are law firms that can help 20 people for free before they find a case they want to take on. The lawyer can review your log and propose options, including filing an official complaint with HR.

Simone: You stand up to age discrimination or harassment of another employee, but are concerned about what that means for your employment.

VW: Anyone who actively opposes discrimination or harassment in their workplace becomes a protected class of their own. Let’s say you witness sexual harassment, you speak up, and you’re fired. That is an act of retaliation.

In this case, the employer actually is guilty until proven innocent, which is one of the unique times this happens in the law. Again, you should feel comfortable documenting everything here.

Simone: You were consensually sleeping with your boss, but now they’re sleeping with someone else, so the work environment has gotten awkward. It’s now very hard for you to be productive at work.

VW: In this situation, even if there is complete consent in both parties’ minds, it is consent with coercion because of the power differential.

Consent is a second-to-second decision. You can revoke consent in the workplace. If there is any measurable detriment to your career following an inappropriate boss-subordinate relationship, then you can then make a claim. It’s important to remove the power differential, and ensure you do not experience financial harm or career stagnation as a result of the relationship.

We’ve seen these situations solved in a few ways. Oftentimes, if the plaintiff has a complicated relationship with that manager, the attorney takes on the role of the bad cop to find leverage and help the plaintiff move out of the bad situation.

Some people will move forward in a similar position as an independent contractor, fulfilling their duties but not reporting directly to the company. Others will join vendors of the company.

Many attorneys will check in intermittently with the client to make sure the client is continuing to thrive in the new circumstances, without encountering roadblocks as a result of the new set-up. We’ll even work with accountants to ensure that if the nature of income is changing, there aren’t any tax consequences.

It is also common to see therapists working with attorneys at the same time. The value of mental health and self-care can’t be understated. My assessments will pale in comparison to what a mental health professional has to say.

Simone: Your boss is just a bad or mean person.

VW: This is what defense attorneys like to call the “asshole defense.” It is legal to be a bad person.

Anti-bullying in the workplace legislation has been considered in several states. But the fear there is: how do you draw the line between bullying behavior and management? They both include threats and coercion. Aggressive behavior isn’t ideal, but it’s also inherently a part of our system.

Simone: Let’s continue talking about assholes. Say your manager continues to publicly berate you in front of your team members. You resort to crying or throwing up in the bathroom now before every team meeting. What is the recourse?

VW: Your legal recourse here will always be detail-driven.

Why is the manager targeting or mistreating you? If the motivation is discriminatory or retaliatory in some way, then you may very well have an actionable claim.

If the manager is intentionally trying to cause you emotional distress, then you may again have a viable claim, although such a claim is often far more difficult to pursue than discrimination. If neither motivation applies, then it is possible you do not have a claim. In such circumstances, there are other professionals, like therapists and coaches, who may be able to assist you in getting away from the abuse.

Simone: You have had great performance, but you’re not sure if your team likes you. All of a sudden you are put on a performance improvement plan.

VW: Here, I would advise you to begin paying close attention to your similarly situated peers. You know that you are empirically successful, so if they are being treated better than you, you need to narrow down the list as to why. If the only difference is your protected class, then you may very well have a claim. Schedule a free consultation with an experienced employment attorney.

With any PIP (Performance Improvement Plan) the name of the game is measurables. You need to know what metrics they are looking for improvement on, how they will be measured, and at what intervals they will be checking in. Then, you need to keep your own records of how you perform on these items because it is a classic bad boss move to try and play with the data to make someone look hopeless.

Conversely, if you come to the conclusion that your protected class is not why you are not well-liked, I often recommend Dale Carnegie’s classic, “How to Win Friends and Influence People.” The book provides simple, straight forward advice that has withstood the test of time and can usually be picked up used for less than fifty cents.

Simone: Your boss told you “you look nice in that outfit.” You feel a little uncomfortable.

VW: Here we must first differentiate the nature of comments. Things like, “Wow that’s a great suit. Where did you buy it?” are probably harmless and respectful in most contexts.

As we dip into the “you look nice in that outfit” realm of repetitive inappropriate office comments, the remedy will be specific to the individual. Some will feel comfortable simply letting the offending individual know, “When you say that it makes me uncomfortable.”

Others may prefer to go to H.R., possibly asking for generalized counseling for the department on that kind of comment so as to avoid conflict. I would not presume to tell you which path is right for you, but certainly be sure to document everything however you decide to proceed.

Comments like this are often a symptom of a deeper problem and your records may end up being very valuable someday in the future.

Simone: Your boss or your company’s client told you “you look sexy in that outfit.”

VW: If your boss feels he or she can make a comment like this to you, it is time to speak with an attorney. At the very least, the attorney can walk you through the H.R. process and try to advise you about safeguarding your interests.

Hopefully there will be no need to bring a claim if H.R. does its job, but sadly, H.R. often does not live up to its role. Introducing sexual comments while you are in control of a situation is an effort to leverage the power differential between employee and employer against you. It’s a very serious problem.

Simone: Thank you, Vincent!


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