With employment lawsuits at an all-time high, it’s more important than ever to know what you can and can’t fire someone for.

First, let’s test your knowledge of legal reasons that you could terminate an employee for.
can I fire this woman for her hairstyle?

Which of the following terminations is NOT legal?

A. Joe fired for distributing political propaganda in the morning huddle.
B. Meg fired for having red hair.
C. Luanne fired for social drinking because her boss thinks it’s a sin.
D. Bob fired for discussing his salary with co-workers.

If you answered “D”, you’re correct. All the other situations are not protected activity and employees can be fired legally. However, employers may not prohibit or fire someone for discussing wages or salaries. It’s considered anti-union and against public policy. At the CEDR Solution Center, we often get the question “Can I fire him/her for that?” With laws becoming more and more protective of employees, it’s sometimes not an easy question to answer.

Although the at-will doctrine is the law in 49 of 50 states (exception is Montana after 6 months of employment), meaning that you can fire someone at any time for any reason, there are actually many exceptions that employers and managers need to be aware of. Employment lawsuits are at an all-time high, and juries are notorious for acting on their sympathies towards terminated employees with high dollar awards.

So when can and can’t you fire someone?

At the risk of stating the obvious, you can’t fire someone in any state for an illegal reason. It is illegal to fire someone because they are in a protected class. Protected classes vary, depending on your state and number of employees, but the most common protected classes are: race, religion, ethnic origin, mental or physical disability, pregnancy, age, gender, sexual orientation, marital status, and veteran status. As you can see, almost everyone is in some sort of protected class.

In other situations, an employee is protected not because of who they are, but what they do. Employees cannot be fired for doing something they are legally allowed to do, or for refusing to do something that is illegal. An example of this would be firing someone for complaining about sexual harassment, filing a workers’ compensation claim, or filing a violation report with OSHA. This is considered “retaliation” and likely lead to a lawsuit.

Most employers and managers are not going to intentionally fire someone because of their minority status or for complaining about discrimination. However, it can and does happen. This is why we have important protections in place. More commonly, what happens is that an employee becomes disgruntled about being terminated and claims that the termination was for an unlawful reason. It is then up to the employer to give the legitimate reason for the termination. If you’ve documented the legitimate reason (e.g., incompetence, violation of company policy, excessive unexcused absenteeism or tardiness, physical violence, drugs and alcohol, lying, illegal acts, etc.), then you’ll be a in a good, defensible position. If you have never documented the performance issues, it becomes “he said, she said” and the battle begins.

So, while it is legal to fire someone because you don’t like their new hat, you better make sure that the hat is not being worn for religious reasons. Likewise, before you fire someone, you should always do a risk assessment and ask the following questions:

  1. Is the employee in a protected class?
  2. Has the employee complained of illegal activity by the employer in the last 6 months?
  3. Is the employee related to someone who has complained of illegal activity by the employer in the last 6 months?
  4. Has the employee been given written notice of termination in the event his/her performance didn’t improve?
  5. Was the employee’s conduct so bad that it warranted immediate dismissal or could be constituted as cause?

The bottom line is that if the employee is protected, your risk is higher. A well-documented record of your legitimate employment actions will lessen your risk of a lawsuit or claim being brought against you.

If you have any questions or thoughts about what you can and can’t fire for, or any other employee-related issues, call CEDR Solutions at (866) 414-6056 or email us at info@cedrsolutions.com.

Want your current handbook evaluated for FREE by human resource experts and professionals? Send your handbook to eval@cedrsolutions.com and mention that you’re an ESS member in the subject line. Also include your name, the best phone number to reach you at, your state, and number of employees.