Employment Discrimination School, Part 1 (Overview, At-will Employment)

This begins a series of posts that will guide you through basic concepts in employment discrimination law. The intent of these posts is to serve as a school outside the physical walls of the law school. By starting with this post and continuing to read posts until this project is finished, you will understand the most important concepts in employment discrimination law.

These posts are aimed at law students studying the field for the first time, at practicing lawyers who need refreshed knowledge, for practicing lawyers entering the field, for human resources professionals, or anyone else wanting to learn more about discrimination.

These posts will explore the four main federal statutes that protect workers against employment discrimination: Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and 42 U.S.C. § 1981 (§ 1981).

Title VII provides protections against employment discrimination based on a person’s race, color, national origin, religion, or sex. As is obvious by their titles, the ADEA prohibits age discrimination in employment, and the ADA prohibits disability discrimination, with Title I of the ADA dedicated to the employment context. Section 1981 protects against race discrimination in employment and other contexts.

Before discussing these statutes in detail, it is important to ground them in the larger context of employment law in the United States.  In the United States, the default rule governing employment is called at-will employment. But see Mont. Code Ann. § 39-2-904(1) (statute abrogating the employment at-will doctrine in certain termination cases).

Under at-will employment, absent a contract, a statute or other law to the contrary, an employer may fire an employee for any reason. That reason can be a good reason or a bad reason. In fact, at-will employment does not require the employer to provide any reason for terminating an employee.

Likewise, an employer can hire an employee for any reason or no reason. The employer also can change the terms and conditions of employment for any reason or no reason.

To provide an example of at-will employment, consider the following. A supervisor calls three employees into a room. He tells each employee to roll a dice. Any employee whose dice lands on six will be terminated. Firing employees in this way is not smart and is not good business practice, but it is legal under at-will employment.

There are many exceptions to the at-will employment rule. One set of those exceptions is the federal employment discrimination statutes, which we will discuss in great detail. States also have statutes that protect employees against discrimination.

Some states, either through statutes or the common law, have carved out public policy-based exceptions to at-will employment. These exceptions vary widely by state, but exceptions have been recognized where an employee refuses to break the law, where an employee is performing a public obligation (such as performing jury duty), or when the employee is exercising a legal right, such as filing a worker’s compensation claim or protesting unsafe working conditions. Contracts also provide an exception to at-will employment.

The concept of at-will employment is important because, in most states, it is the default rule governing hiring, terminations, and the terms and conditions of employment when no other law or contract applies to the employment relationship. As we study discrimination law, you will see that the courts are some times balancing anti-discrimination mandates with the power given to employers under at-will employment.

Outside the United States, many countries explicitly provide employees protection against unjust terminations or require an employer to pay an employee when an employee is fired absent cause. Some countries recognize an employee right of privacy or right of personality. See Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 Chi-Kent L. Rev. 221, 261 (1996).

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