Question

You have been hired as a Management Consultant by a large company to examine the business decisions of the company in regards to employee protections. The laws applicable are federal anti-discrimination laws, federal health and safety laws and employer firing practices related to the employment-at-will doctrine. In relation to the three questions below, write a four to six (4-6) page paper in which you:

1. Analyze, identify and explain recent legislation, within the last 10 years, that helps to protect employees from discrimination in the workplace. Provide at least two federal legislative protections. Provide some insight when the federal legislation conflicts with the state.

2. Explain the Employment at Will Doctrine and ALL the exceptions to the Doctrine. Look at the scenarios below and determine whether the decision to fire the employee is a smart one. Identify why or why not and determine all the possible exceptions per the EAW Doctrine that is applicable, might be or could be applicable if the employee sues for wrongful termination.

Answer 1

Discrimination at work may occur between colleagues, employee and employer, or between an employee and a third party. Specifically, it’s the unfair treatment of an employee or candidate based on the class or category to which they belong, rather than on individual merit. Discrimination in the workplace is illegal when the victim is a member of a protected category (i.e., gender, age, disability, religion, race, sexual orientation, pregnancy and national origin).

Discrimination occurs during the recruitment process.

The wording in job advertisements may discriminate against certain individuals or groups to dissuade them from applying at all. For example, a company seeking “men for construction work” might be exhibiting gender discrimination.

How interviews are conducted, the questions asked and the predetermined “right” answers are sometimes used as a way to discriminate against certain candidates.

Types of Discrimination:

Direct Discrimination

Workplace discrimination can be direct, indirect or both.

Direct discrimination, also called disparate treatment occurs when someone treats (or encourages others to treat) someone else unfavorably because of their protected class.

Direct discrimination happens because of stereotypes about the abilities and qualities of those in protected classes. These stereotypes lead to unfair and untrue assumptions about what a person from a protected group can or can’t do.

This type of discrimination is often intentional and obvious.

Indirect Discrimination

Indirect discrimination, often called disparate impact, is when a policy or condition is imposed that, as a side effect, disadvantages a protected group (or a person from one).

For example, implementing hiring criteria that just so happens to screen out women or minority group members has a disparate (and negative) impact on members of these groups.

Reverse Discrimination

Reverse discrimination is a fairly debated topic but one to explore nonetheless.

Title VII does not just prohibit discrimination against women or minority members, it also protects groups that are typically understood as somewhat free from discrimination (like men and Caucasians).

Programs or systems that mean to correct past mistreatment of historically disadvantaged groups might actually end up discriminating against historically advantaged groups.

Discrimination Laws

Not all types of employment discrimination are protected under law.

Title VII of the Civil Rights Act (1964) is the primary law against discrimination in the workplace and prohibits discrimination based on protected classes such as race, color, religion, sex and national origin.

There’s also the Age Discrimination in Employment Act (ADEA) that protects employees over the age of 40 from facing discrimination based on their age.

The Americans with Disabilities Act (ADA) prohibits discrimination based on physical or mental disabilities.

Pregnant women and employees looking to grow their families are protected by both the Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA).

Retaliation Laws

The Equal Pay Act (EPA) of 1963 makes it illegal to retaliate against an employee or candidate because they engaged in certain “protected” conduct.

Under the EPA, the follow actions are protected conduct:

• Complaining about discrimination (real or perceived)
• Opposing discrimination (real or perceived)
• Refusing to participate in discrimination
• Filing a discrimination charge
• Planning to file a discrimination charge
• Aiding in a discrimination investigation

Example 1

Beth has worked for The Smith Company for ten years and recently found out she’s a few weeks pregnant. She’s excited and not superstitious, so she shares the news with a few colleagues.

Beth, still early into the pregnancy, applies for a more senior position that opened up in her department that same week. Despite being the ideal candidate, including being more experienced and more qualified than the other applicants, Beth isn’t offered the promotion.

Example 2

Tommy works in construction.

A few months ago, Tommy expressed that he wanted to learn more about managing a team and asked his boss if he could start taking on more of a leadership role.

Since then, he has thrived in his new duties and is about to be offered a huge training opportunity.

Last weekend, Tommy’s boss saw him on a date with a man. The next day, Tommy finds that he’s no longer invited to sit in on management meetings and must return to his original job, effective immediately.

Example 3

Sally is 17 and works as a cashier at the nearby grocery store.

In school, Sally is learning about employment law and realizes she’s not being paid the national minimum wage for students. She tells her employer and they adjust her pay cheques.

Then, a week before Sally’s 18th birthday, she’s let go from her job as a cashier. The employer said she “wasn’t performing”.

The real reason behind her termination is that Sally would move into a higher age band and entitled to a higher wage.

Employment at will means an employee can be terminated at any time without any reason, explanation, or warning. It also means an employee can quit at any time for any reason – or no reason at all.

At-will employment has grown increasingly more popular over time. This type of employment involves a great deal of flexibility for both the employer and the employee. Employers, for example, can change the terms of employment – such as wages, benefit plans, or paid time off – without notice or consequence. Employees can change jobs without notice if they choose. (Although it’s generally best to provide two weeks’ notice, regardless of legal requirements, to protect your reputation with future employers.)

Employee Rights

While at-will employment provides fewer worker protections than alternatives such as employment under a union collective bargaining agreement, employees do have rights after a termination. These include statutory rights under federal and state law, such as unemployment insurance and anti-discrimination laws.

Federal and state governments have laws protecting at-will employees from wrongful termination. Reasons can include race, religion, citizenship, retaliation for performing a legally protected action, whistle blowing, disability, gender, age, physical health, sexual orientation, and other factors protected by labor laws.

In addition, company policy may offer protections such as severance pay for employees who are terminated under certain conditions.

Exceptions to At-Will Employment

Some situations might require either an employer or an employee to follow stricter guidelines than what is typical for at-will employment. The following are examples of such exceptions:

Employment Contracts: An employee who is covered under a collective bargaining agreement or who has an employment contract may have rights not afforded typical at-will employees.

Implied Contracts: Employers are prohibited from firing an employee when an implied contract is created between them, regardless of whether or not a legal document exists. It is usually very difficult to prove the validity of such an agreement, and that burden rests with the employee. Your employer’s policy book, or new-hire handbook, might indicate that employees are not at will and can only be fired for good cause.

Good Faith and Fair Dealing: Yet another exception is known as implied covenant of good faith and fair dealing. In this case, employers cannot fire a person in order to avoid their duties, such as paying for healthcare, retirement, or commission-based work.

Public Policy: Employers are not able to fire an employee if the action violates their state’s public policy exception. In this case, employers are prohibited from firing or seeking damages from an employee if the employee’s reason for leaving benefits the public. In the United States, only eight states do not recognize public policy as an exception to this rule. These states are Alabama, Florida, Georgia, Louisiana, Maine, Nebraska, New York, and Rhode Island.

Documentation of Company Policy

Most employers state clearly in their employee handbooks that employees are at will. While this is not explicitly necessary, it can help prevent disputes from arising later on. Other employers may have new employees sign a document acknowledging that they are at-will employees and they agree to all conditions that come with that status.

Legal help site Nolo.com suggests the only time this really can be an issue is if an employee accepted a position based on a verbal agreement that conflicts with an at-will employment agreement they later are asked to sign. In that event, it is recommended that the employee consult with an attorney before signing such a document.

Does Employment at Will Mean That You’ll Be Fired without Warning?

In short: not necessarily. But it’s best to conduct yourself as if you might be terminated without warning. Have your resume, references, etc. prepared and ready to go, so that you can begin looking for another job immediately if you need to do so.

That said, employers have a brand just like any company, and most prefer to avoid gaining a reputation for impulsiveness or cruelty. So, barring situations in which they feel you’ve given them good cause, many will prefer to soften your transition. That might mean giving you a bit of warning in the form of placing you on a performance improvement plan prior to termination, or providing you with severance after a separation, or simply not contesting your claim to unemployment benefits.

Bottom line: Just because an employer can do something, doesn’t mean they will. Prepare for the worst, but don’t obsess over it. In today’s job market, it pays to be ready to make a change on short notice regardless. After all, you never know when a better opportunity will come along and you’ll decide to take advantage of at-will employment and get a better job.