The Difference Between Unfair and Unlawful in the Workplace

As an employment lawyer with over 20 years of experience, one of the most common misconceptions I encounter in my legal practice is the belief that if something feels unfair or wrong, it must also be illegal. The reality, however, is that "unfair" – or even “morally wrong” – and "unlawful" are not always synonymous.

An employee may be passed over for a promotion, receive criticism they disagree with, be managed by a difficult supervisor, or even be disciplined or terminated for reasons that seem arbitrary. But while those situations can sometimes feel deeply unfair, such treatment alone does not necessarily violate the law.

At the same time, employers should not assume that a decision is lawful simply because it appears reasonable or well-intentioned. The law protects employees who engage in certain activities, such as requesting a disability accommodation, taking protected leave, raising good faith concerns about potential legal violations (including those relating to wages or requirements under OSHA), or reporting discrimination or harassment based on sex, race, disability, or another protected characteristic.

The legal question is often not whether a workplace decision or action is fair or unfair. Instead, the inquiry typically focuses on issues such as whether the employee’s protected characteristic (for example, age, race, sex, religion, or disability) or protected activity (such as making a sexual harassment complaint) played a role in the decision, whether the employer has a legitimate, non-discriminatory reason for the action, and whether the surrounding facts reasonably support an inference of unlawful conduct.

Why does this distinction matter?

For employers, recognizing the distinction can help inform workplace decisions before they become disputes. A decision may be lawful and yet still create unnecessary employee relations issues, just as a well-intentioned decision may create legal risk if it implicates a protected right or activity. Proactively evaluating the matter at hand can help employers identify potential concerns early, make more informed decisions, and perhaps prevent a costly employment claim.

For employees, understanding the difference between unfair and unlawful can help set realistic expectations, focus attention on the facts that are legally relevant, and lead to more productive discussions with their employer or with counsel if it comes to that.

Ultimately, fairness and legality are not always the same thing. Appreciating the difference can lead to better communication, better decision-making, and, in some cases, the avoidance of disputes altogether.

This post is for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Readers should consult legal counsel regarding their specific circumstances.