Kenneth Ching
One challenge for employers is occasionally employees must be terminated. There are many legitimate reasons for terminating employees. Unfortunately, sometimes former employees claim to have been terminated illegally, creating the risk of legal and financial liability. Fortunately, employers can take steps to minimize such risks.
At-will employees
A starting point for avoiding wrongful termination is to make sure most of a company’s employees are “at-will,” who can be terminated for any legal reason. This is usually done through employee manuals or hiring letters. However, even at-will employees can’t be terminated for an illegal reason. The following discusses illegal terminations and provide tips for avoiding liability.
Illegal reasons for terminating an employee
Religion. One employer refused to give an employee time off to attend a religious service. When the employee missed work anyway, the employer fired him. The employee sued, and the court found he had been wrongfully terminated because his employer failed to “reasonably accommodate” the employee’s religious practices. Tip: consider disparate impacts. For example, requiring all employees to work on Sunday may affect religious employees differently than non-religious employees.
National Origin. Another employer fired a janitor, claiming the termination was to save money, but the employee claimed it was because she was Mexican. Through litigation, the employee showed no other janitors received the same treatment she did, and the court found the employer liable for discriminating against her for being Mexican. Tip: inconsistent actions can be evidence of discrimination.
Disability. If an employee requests a disability accommodation, the employer must enter into an “interactive process” with the employee to determine how to provide an accommodation. An employer doesn’t necessarily have to provide the accommodation the employee requests, but the employer does have to provide a reasonable accommodation. Tip: document things like doctors’ notes, job duties, and the final result of the interactive process.
Sex/Gender/Sexual orientation. Derogatory remarks, teasing, harassment, pinching, grabbing, lecturing about a person’s “life style” can be grounds for legal liability. An employer isn’t automatically liable if such things happen in the workplace; however, an employer must take reasonable actions to prevent or remedy such problems. Tip: take prompt corrective action.
Pregnancy. One restaurant manager said of pregnant waitresses, “They’re too fat to be working,” and made them become cashiers. The employees sued and won $300,000 in punitive damages. Tip: train managers and supervisors not to engage in illegal discrimination. Their actions are especially likely to expose the employer to liability.
Whistleblowing. An employee who reports his employer’s illegal activities to the authorities can’t be terminated for that reason. Tip: be careful about timing. If an employee has recently reported his employer to the authorities, it is risky to terminate that employee shortly thereafter.
This column is not exhaustive of every illegal reason for terminating an employee. If you have questions about employee terminations or any other employment law matter, contact Kenneth Ching at 775.343.7502 or kching@dickinsonwright.com.
