If your boss does something inappropriate, unfair, or just downright disrespectful, it is natural to wonder whether you can sue. After all, employees should not have to put up with bad behavior at work. But here is the hard truth: just because your employer acts badly does not mean you automatically have a claim for employment discrimination under law. To win a case—and get paid—you must prove that what happened to you violated a specific law. That means the behavior must be tied to race/color, gender, gender identity, sexual orientation, national origin, religion, disability, age, or pregnancy, and the conduct must meet the legal standard.
The United States Court of Appeals for the Ninth Circuit recently drove this point home in Lister v. City of Las Vegas, No. 24-3933, 2025 WL 2203104 (9th Cir. Aug. 4, 2025). This case shows how an employer’s offensive behavior—while clearly wrong—may not result in a financial award if it does not rise to the level of illegal discrimination or retaliation.
What Counts as Illegal Discrimination at Work?
Before you can win an employment discrimination case, you have to understand what the law actually prohibits. Under federal employment law—including Title VII of the Civil Rights Act of 1964—employers cannot discriminate against employees because of their race, color, sex, religion, national origin, age, disability, or other protected characteristics.
To prove unlawful workplace discrimination, you must establish several elements:
- First, you must show that the mistreatment was because of your membership in a protected category (like race or gender).
- Second, if you are bringing a hostile work environment claim, the behavior must be severe or pervasive enough to create an abusive or intimidating work environment.
- Third, you must prove that your employer knew or should have known about the conduct and failed to take effective action.
In other words, the law does not punish employers simply for being rude or disrespectful—it punishes employers for crossing the legal line into discrimination or retaliation based on a protected trait.
This is exactly what was missing in Lister v. City of Las Vegas. The jury agreed that the supervisor’s comment was offensive and humiliating. But they did not believe it was made because of the plaintiff’s race or gender. Without that connection, the court held that Title VII had not been violated. The Ninth Circuit affirmed that even egregious behavior does not become illegal unless it meets every legal element of a discrimination claim.
That is why legal guidance is essential. You may know the behavior was wrong—but only a skilled employment attorney can determine whether it was also illegal. Proving discrimination requires collecting the right evidence, asking the right legal questions, and applying a complicated legal standard to your unique facts. Getting it wrong could cost you your case—and the justice you deserve.
Best Employment Discrimination Lawyer Blogs on Point:
- How Specific Do My Complaints Of Race Discrimination Need To Be?
- Can I Still Win My Race Discrimination Case If I Didn’t Report Everything?
- Why You Can’t Rely on Secondhand Info to Prove Employment Discrimination
Can I Sue If My Boss Said Something Offensive?
You might think so. After all, if a supervisor makes a humiliating comment in front of others, that should be enough, right? Not necessarily. In Lister, the plaintiff was the first African-American female firefighter in Las Vegas. During her nearly 30-year career, she experienced what she believed to be a degrading and discriminatory comment from her white male supervisor. Specifically, he called her by name while feeding steak to a dog, saying, “Here, girl. Here, Latonia,” while making kissing noises. Understandably, she found the comment offensive and reported it.
A jury later found that the comment was indeed severe or pervasive and offensive to a reasonable person. That means they believed it crossed a serious line. However, the jury also concluded that the comment was not motivated by race or gender—and therefore, was not unlawful under Title VII.
This distinction is critical. Employment discrimination laws are not general civility codes. Just because something is rude or mean does not mean it is illegal. The Ninth Circuit affirmed that although the comment was inappropriate, it did not meet the legal definition of race or gender discrimination under Title VII.
If this sounds familiar, you should talk to an employment attorney right away.
What If the Jury Agreed I Was Treated Badly? Do I Still Lose?
Maybe—if the jury does not find that the mistreatment was based on a protected characteristic or that it violated the law, you lose. In Lister, that is exactly what happened. The jury found that the April 7 comment was severe or pervasive and offensive—meeting the standard for workplace hostility. They agreed that a reasonable person would find the incident upsetting. But that was only step one.
The jury was then asked whether the comment was motivated by race or gender. On both counts, the jury answered “no.” They also found no retaliation by the employer. Despite these answers, the jury still awarded $150,000 in emotional distress damages—apparently based on their belief that the conduct was inappropriate, even if not unlawful.
This contradiction created a legal problem. Damages under Title VII can only be awarded if there is a legal violation. Recognizing the inconsistency, the trial judge polled each juror. Every one of them confirmed that they did not find the City liable for discrimination or retaliation. This meant that even though they awarded $150,000 on the verdict form, they legally agreed that no discrimination had occurred—making their own damages award meaningless. Since there was no underlying violation, the judge ruled that the damages award had no legal basis and struck it from the record.
On appeal, the Ninth Circuit affirmed. The Court held that when the jury clearly finds no Title VII violation, any award of damages is legally invalid—regardless of how sympathetic the facts may appear.
The takeaway? Do not assume you will win just because you were mistreated. You need to prove that the misconduct violated specific employment laws.
Best Employee’s Rights Attorney Blogs on Point:
- Not All Bad Employer Acts Create A Discrimination Claim
- Your One Shot At A Discrimination Claim – Make It Count
- Not All Racial Comments Create Hostile Workplace Or Discrimination
Does Retaliation Count If You Reported Something Offensive?
Not always. Title VII protects employees from retaliation only when they report conduct that they reasonably believe violates the law. That means if you report something that is offensive but not tied to race, sex, or another protected category, you may not be protected.
In Lister, the employee reported the steak-and-dog comment and said she experienced backlash afterward. But because the jury found there was no discrimination in the first place, they also found that the employer’s response was not illegal retaliation. The Ninth Circuit agreed that you cannot be retaliated against under Title VII unless your original complaint was about unlawful discrimination.
If you are not sure whether what you reported qualifies as protected activity, do not guess. Talk to an experienced employment attorney who can protect your rights before it is too late.
Best Wrongful Termination Law Firm Blogs on Point:
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- Can Timing Alone Prove Workplace Retaliation?
When Is Employer Misconduct Illegal Under Employment Law?
That is where an experienced employment lawyer comes in. These cases are complex. It takes training to understand whether a bad experience at work is just bad—or actually illegal. Just because you felt targeted or embarrassed does not automatically mean your employer violated the law.
Many employees want to know where the line is between misconduct and discrimination. The truth is, not every form of workplace mistreatment will lead to a lawsuit. But when it does, you want the best legal team on your side.
If there are patterns, slurs, or actions tied to race, gender, or other protected categories, you may have a strong claim. The best way to find out is to consult with a qualified employment attorney who can look at your facts and apply the right legal standard.
Whether your employer’s conduct is illegal or just unethical, the best step you can take is to document everything. Save texts, emails, write down incidents, and timelines. This information can make or break your case.
At Spitz, The Employee’s Law Firm, we help employees figure out whether they have a claim. We are one of the largest law firms in the country dedicated entirely to employee rights. We offer a free consultation, a no-fee guarantee, and have a long history of winning tough employment law cases. We listen, we care, and we take action.
If you think something at work felt wrong—but are not sure whether it crossed a legal line—call us. It costs nothing to find out. And if your employer did violate the law, we will fight to get you everything you are owed.
Employment Lawyer Disclaimer
This employment discrimination blog provides general information about employment law and employee rights and is not intended to be legal advice. Every situation is different, and employees facing workplace discrimination, wrongful termination, or retaliation should consult with a qualified employment lawyer for personalized legal advice. Reading this blog does not create an attorney-client relationship. No guarantees are being made. This blog is a legal advertisement. If you believe you have been wrongfully fired or discriminated against by your employer, including harassment at work, reach out to an employment attorney immediately.