Lawyers see a lot of this. A boss puts written reprimands in an employee’s file, repeatedly. Each one of them turns out to be unfounded. The employee responds in writing and with documented proof. But the reprimands keep coming. They keep being unfounded. But the employee is getting more and more frazzled, partly because she has to spend more and more time and energy on the reprimands, and therefore has less of it to devote to actually doing her job. She becomes uncommunicative and subdued in demeanor, less involved in the communal cameraderie of the workplace. The employee suspects that the boss is doing this to get rid of her, perhaps because she is the wrong gender, the wrong age, the wrong color, or in some other legally unmentionable way doesn’t fit in. But she can’t prove it, and in the meantime her personnel file gets thicker and thicker. Finally, the boss begins the process of official disciplinary action, based on several months of reprimands in her file. That action may vary from place to place, but usually involves a progression from oral reprimands to written reprimands to suspension with pay to suspension without pay to termination. At termination, a pair of burly security guards usher her to her cubicle to clear out her desk, and then walk her out in what looks for all the world like a perp walk. If anyone asks why the armed escort, they will be told that you never know what a disgruntled employee may be capable of and we can’t take chances. She will, of course, be barred from the premises forever afterward, and her former co-workers will be warned against communicating with her in any way. If they ask why, they will be told “that’s confidential. We’re protecting her privacy.” The co-workers can be excused for concluding that the lady must really be off the deep end, nuts and possibly violent.
If the employee in question really is markedly different from most of her colleagues and bosses by reason of age, gender, or race, she may have a slender chance of a legal remedy for what has happened to her. That’s where some of my clients come from. But the reprimands in her file, and the aura of danger surrounding her, make a legal remedy hard to come by. The law on workplace discrimination requires the plaintiff to pretty much prove that the defendant’s behavior is explicable only by discriminatory motives. All the employer has to do is generate enough smoke to convince the court that there must be a fire in there someplace.
The employer has yet another advantage in these cases. Not only can the judge be easily convinced that the employee deserved to be fired, for perfectly legal reasons. But in addition, the employee’s testimony and evidence can be subjected to withering doubt because she has obvious motivation to lie. After all, she’s crazy. And disgruntled. And for some mysterious reason has taken a dislike to the boss.
The employer can even admit to most of the plaintiff’s allegations—“yes, I wrote her up all the time, and didn’t always check my facts first, so a lot of those writeups turned out to be mistaken. That still doesn’t give her the right to become sullen and morose on the job. Or to lie about me being a bigot. And it had nothing to do with her being a Pakistani.” He can readily admit to having given her a motive to behave improperly, because legally, he has not given her a justification.
Chances are that some employees subjected to this treatment may actually become crazy and/or violent. It speaks amazingly well for the ordinary working person that it happens so rarely. The documented incidents of workplace violence over the last thirty years have, so far as I know, never been investigated from this angle. Perhaps they should be.
Another interesting sidelight on bad boss scenarios is that the bad boss in question may be engaging in some really serious or even criminal wrongdoing, not against the unfortunate employee who gets in the way, but against the company, the agency, the Big Boss, the public, or the customers. By picking on the particular employee, he has neutralized her as a source of evidence against him in this larger context. And it doesn’t do her much good, after the fact, to be able to point to his subsequent indictment and conviction and say “See, I knew he was a crook all along.” She has still been fired, and will probably have a lot of trouble getting hired elsewhere. The closest thing to a useful strategy she, or her lawyer, can use, is to keep her case dragging out so that it is still going on when the boss gets indicted. This is usually pretty difficult.
Then there’s the “woman scorned” defense. If I were a man, and wanted to commit some perfect crime against, or involving, or at any rate unavoidably witnessed by, a woman, I would first initiate a romantic relationship with her, and then dump her as humiliatingly as possible. Thereafter, it wouldn’t matter what she knew about my nefarious deeds—nobody would believe her because she is a woman scorned, and therefore capable of making up any kind of lie about me. Would the device work if the sex roles were reversed? Dunno. Never seen it tried. Needs further research.
And, once again, The Jerk could take the witness stand and admit on the record to the dirtiest, slimiest behaviors he has ever committed against her, things that would make every woman in the courtroom want to cross the street to avoid shaking hands with him, and his case would only improve with each tawdry detail. Because each detail builds up more and more motive for the unfortunate lady to lie, or to retaliate in some illegal manner, without providing her with any legal justification.
Of course, most of us are capable of jerkitude at work and at play. But we do not usually plan to commit it as part of a setup for a perfect crime or even actionable discrimination. We just do what comes naturally. The most serious jerks generally behave that way, and also commit crimes or torts, for the same reasons—they feel entitled to do so. Often, the use of the “disgruntled employee” and “woman scorned” defenses never occur to them at all, until after the fact when a lawyer points them out. Perhaps only a particularly devious lawyer would think about it ahead of time. The result is the same.