“Inclusion and fairness in the workplace… is not simply the right thing to do; it’s the smart thing to do.” — Alexis Herman
There’s a conversation that happens in employment law offices every day. A worker comes in, clearly shaken, and describes a workplace that sounds like a season of a prestige TV drama — a boss who screams, demeans, excludes, and systematically makes life miserable. The worker is certain they have a case. The law must protect them from this. After all, what happened to them was deeply, obviously wrong.
Then the lawyer has to deliver the news: what you experienced is probably legal.
This gap — between what employees believe the law provides and what it actually delivers — is not a minor technicality. It is a chasm. And understanding why it exists, why it persists, and why workers should be furious about it is the first step toward changing it.
What the Law Actually Says
Let’s be direct. Federal employment law, and most state law, protects workers from a specific and narrow category of mistreatment: discrimination and harassment based on protected characteristics (race, sex, religion, national origin, disability, age, and a handful of others depending on jurisdiction), and retaliation for complaining about those things. That’s the core of it.
What the law does not protect against is equally important: a boss who is simply cruel. A manager who berates, belittles, and bullies workers for no reason tied to race, gender, or any protected class. A supervisor who makes your working life a daily exercise in psychological endurance — not because of who you are, but because they can. Under current federal law, and in nearly every state, that is entirely permissible.
Workplace bullying legislation has repeatedly stalled in state legislatures and has never gained meaningful traction at the federal level. The Healthy Workplace Bill, a model statute that has been introduced in various forms in dozens of states since the early 2000s, has yet to pass in a single state. The message this sends to workers — whether legislators intend it or not — is that the law simply doesn’t care if your boss is a monster, as long as the monster isn’t discriminating on a prohibited basis.
The Employment-At-Will Doctrine: Built on a Mistake
The legal foundation underlying most American employment relationships is the employment-at-will doctrine: absent a contract, either party may terminate employment at any time, for any reason or no reason at all. Most American workers have no meaningful job security outside of the relatively narrow statutory protections already mentioned.
What is less widely known — and what should fundamentally undermine confidence in this doctrine as settled law — is that employment-at-will appears to rest, at least in significant part, on a research error. Legal historian Clyde Summers and others have documented that Horace Wood’s 1877 treatise, which articulated the at-will rule and became its foundational citation, misstated or misread the cases it relied on. The rule was propagated through subsequent cases citing Wood, and courts built a century of doctrine on a foundation that was never as solid as it appeared. Most countries with functioning economies — including virtually every peer democracy — rejected employment-at-will long ago in favor of systems requiring just cause for termination. The United States retained it, amplified it, and made it the default condition of roughly 75% of the American workforce.
The policy case against at-will employment is also overwhelming. A rule that allows termination for genuinely any reason — including capricious, petty, or retaliatory reasons that don’t quite rise to the level of illegal discrimination — creates an enormous power asymmetry. It allows employers to discipline the exercise of legal rights, punish workers for minor workplace disputes, and maintain a climate of fear without triggering legal consequences. The rule’s only consistent beneficiary is the employer.
The Monopsony Problem Nobody Talks About
The power imbalance isn’t just legal — it’s structural and economic. The standard economic model of labor markets assumes competitive conditions: many employers bidding for workers, many workers offering their labor, prices set by the market. In this model, a bad employer loses workers to competitors, and the market corrects.
That model has always been partially fictional and is increasingly obviously so. In many regional labor markets, particularly outside major metropolitan areas, there are few employers in any given industry. Workers face a choice between accepting the terms of a small number of dominant employers or leaving the region entirely. This is monopsony — the labor market equivalent of a monopoly, where the buyer (the employer) has pricing power rather than the seller. Economists have documented the prevalence of monopsony power in healthcare, fast food, retail, education, and other sectors. When employers possess monopsony power, the “just quit” response to unfair treatment isn’t a real option for most workers. The job market isn’t a level playing field where workers can credibly threaten to walk.
Non-compete agreements — though increasingly challenged by the FTC and some state courts — have historically compounded this problem, making it contractually difficult for workers to leave even when they want to. The result is a labor market where many workers are effectively trapped: unable to leave without significant personal cost, and legally unprotected against mistreatment short of discrimination.
Why Do Workers Believe They Have More Protection Than They Do?
Here’s the interesting question. Given how thin the law actually is, why do so many workers walk into lawyers’ offices convinced that what happened to them must be illegal? Why does the belief in a general right to fair treatment persist so stubbornly?
Several forces drive it.
The dignity intuition. Most people have a deeply held moral intuition that abuse, cruelty, and arbitrary power are wrong. This intuition isn’t irrational — it reflects genuine values about human dignity that most of us share across cultural and political lines. Workers conflate moral wrongness with legal wrongness because, in many areas of life, the law does track moral intuitions. We have laws against fraud, assault, theft. The extension to workplace mistreatment feels natural, because the moral case for it is obvious.
The rhetoric of rights. American workplace culture has absorbed the language of rights — employee rights, workplace rights, “you have rights” — from a variety of sources including HR departments, labor advocacy organizations, and popular culture. This language is often technically accurate but dramatically incomplete. Workers have some rights. But the vocabulary of rights implies a more comprehensive protection than actually exists, and most workers have no reason to scrutinize the fine print unless they’re in a dispute.
The HR function as false proxy. Human resources departments exist, in theory, to manage compliance and employee relations. In practice, HR works for the employer, not the employee. But the presence of an HR department — with its policies, handbooks, and procedures — signals to workers that there is a system of accountability in place. When HR fails to act on a complaint, or acts in ways that clearly protect the company rather than the worker, it is often genuinely surprising to the employee. They assumed the structure meant protection.
Legal visibility bias. The cases that become publicly visible — the big verdicts, the high-profile settlements, the discrimination suits that make the news — are the cases that were legally actionable. Workers rarely hear the stories of the equally awful workplace that produced no legal claim, because those don’t generate headlines. The visible sample of employment law stories dramatically overstates the breadth of legal protection.
Why Isn’t the Law Changing?
If workers broadly believe they deserve more protection, and if the policy case for workplace anti-bullying laws and just cause protections is credible, why hasn’t the law caught up?
The honest answer involves several uncomfortable realities.
Employer interests are organized, funded, and focused. Business lobby groups spend enormous resources opposing expansions of workplace protection. Their arguments — cost, compliance burden, threat to flexibility — are readily available and well-rehearsed. The interests on the other side are diffuse: workers in general, not a specific organized constituency in most cases, with the partial exception of unionized labor.
Workers underestimate their political leverage. Employment law reform is not typically a galvanizing electoral issue, in part because workers don’t see it as connected to their immediate political concerns. When workplace protections don’t feel real to you until you need them, they’re easy to deprioritize.
The legal profession has mixed incentives. Employment lawyers who represent workers in discrimination cases have a financial stake in the current framework — a narrower system of protection produces tractable, defined claims. A broad anti-bullying statute might generate more cases but also more uncertainty and more risk. Change is complicated even for those who nominally support workers.
And frankly, there is a cultural current in American life that treats workplace suffering as a feature rather than a bug — evidence of toughness, of earning your stripes, of the natural order of economic hierarchy. This cultural assumption insulates the status quo from critique.
What Workers Should Actually Do
None of this is an argument for resignation. It is an argument for clarity and strategic thinking.
Workers should understand that their real legal protections are specific and bounded. When facing workplace mistreatment, the first question to ask — with a lawyer, not just with a friend — is whether the mistreatment connects to a protected characteristic. The narrowness of federal law makes that question the threshold issue in almost every case. Don’t assume the obvious wrongness of the conduct translates to legal liability. Engage a lawyer early, before the factual record is contaminated or the statute of limitations runs.
But beyond individual legal strategy, workers should be demanding more. The Healthy Workplace Bill and equivalent state legislation deserve active political support. The movement against non-competes, now gaining real traction, deserves the same. The broader project of rebuilding union density — which has historically been the most effective counterweight to employer monopsony power — deserves support from workers who have never thought of themselves as “union people.”
The law’s current shape is not natural, inevitable, or logical. It is the product of specific historical choices, some made on fraudulent legal reasoning, most made when employer interests had more political traction than worker interests. Those choices can be unmade. But they won’t be unmade by workers who don’t understand what the law actually is, who hold the comforting but mistaken belief that the system already protects them.
The first step toward better law is an honest account of what we have.
For more information about this topic, please contact Carey & Associates, P.C. at info@capclaw.com or 203-255-4150.
