Does Your Boss Have the Right to Fire You For Being Physically Irresistible?
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Got that? Even though Nelson never reciprocated the sexual banter, she is somehow culpable for Knight’s inappropriate comments and has no recourse under the law because she had a relationship beyond rigid professionalism with her boss of over a decade. But who doesn’t develop friendships and other personal bonds with those who have authority over them? In the absence of just-cause firing laws or union protections, friendly relations with a boss is probably one of the best protections against unjust firing. After all, under employment-at-will your boss can legally fire you just because he doesn’t like you. But under employment-at-will your boss can also legally fire you because he likes you too much.
So what can you do if faced with a similar situation? In theory, the best protection would probably be to immediately inform the offending superior that his comments are making you uncomfortable. This would conceivably make the wrongdoer stop, or if worst comes to worst, provide a strong basis for a sexual harassment suit. If possible, inform another manager and keep a detailed account of dates and times of the incidents. If the company is large enough to have a Human Resources department, report the unwelcome attentions to a representative or harassment hotline.
But such actions are easier typed than done. What if the creep in question is the highest authority, as Knight was? Human Resources departments, while better than nothing, are no substitute for a third party arbitrator or the option of independent action. With a power imbalance of this magnitude, it'd be nice to have someone on your side who isn’t being paid by the same employer that could potentially be legally implicated in your complaint. Mersich notes that the National Labor Relations Act protects workers engaged in “other concerted activities for the purpose of…mutual aid or protection” and that “I often advise clients to bring other employees into a complaint about lawful (but awful) behavior. When you act on behalf of others, even if they don’t ask you to, you are engaged in ‘concerted’ activity.”
But he admits that Nelson had no such option, as she was the sole object of Knight’s attentions.
“I think this employee might have been better off if the moment her boss started saying sexually oriented things to her she had objected, and objected vociferously…[instead] she understandably kind of brushed it off and didn’t really engage,” says Bagenstos. “Now that is a double-edged sword for an employee. You don’t want to rock the boat. If you complain too much your boss may not like you; most people want to make day-to-day relations go smoothly. If you complain, your boss might fire you and you might not be protected against being fired.”
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