ABCs of Employment Law: Employment at will

So misunderstood!

NOTE FROM ROBIN: Earlier this year, I began a series of very basic explanations of the federal laws that govern the workplace. The first installment covered discrimination in general, and the second installment covered religious accommodationSubsequent posts have covered retaliation and the Fair Labor Standards Act (minimum wage and overtime). If there is a topic that you'd like to see covered, please send me an email or leave a comment here.

This week's topic, the employment-at-will doctrine, is not a federal law, but it might as well be. It's also almost universally misunderstood. 

"Nobody understands me."

Karla Miller's workplace advice column of The Washington Post had an item yesterday about a man who obtained a medical exemption from his employer's no-beard requirement. Even though the man had a legitimate medical reason for not being clean-shaven, his boss said that she'd be darned if she'd ever promote him because of that nasty beard.

That's ridiculous and maybe illegal, and Karla and most of her commenters agreed. As Karla said, "I would question whether this policy is the hill your employer's integrity deserves to die on." But one commenter, "pajacobsen," begged to differ:

The hill is irrelevant compared to the mountain called the at-will-employment law. The general broad acceptance of this law by the population makes underlying random policies and random enforcement safe.

(Bold added by me.)

Whaaaaaat? "Random policies" and "random enforcement" are legally safe? "Pajacobsen" needs to learn a thing or two about the employment-at-will doctrine. As do the readers who gave him "likes." I hope they'll all read this post.

The employment-at-will doctrine says that, absent a contract of employment for a definite term, either the employer or the employee can terminate the relationship at any time and for any reason (good or bad, fair or unfair) or for no reason at all. 

This is the general rule in 49 states, the only exception being Montana.

Robin, you just proved pajacobsen's point!

Let me finish.


I'm teasing! Don't take me seriously. But seriously . . .

Let's say your CEO wants to fire an employee for the sole reason that she is 60 years old. And you're not in Montana. Do you tell the CEO to have at it?

Of course you don't.

Because the federal Age Discrimination in Employment Act says it's illegal to discriminate based on age if the employee is 40 or older. You may also have a state law that prohibits age discrimination. Even if you're in an at-will state, you still have to comply with the anti-discrimination laws, right? Right.

Do you see where I'm going with this? 

Yes, employment-at-will is a real thing. It is a common-law doctrine that caught on in the United States in the late 19th century. But it doesn't override other laws that protect employees from discriminatory or other unlawful terminations. And there are an awful lot of "other laws that protect employees from discriminatory or other unlawful terminations," of which the ADEA is only one. For example,

  • Title VII, which in addition to prohibiting race discrimination, also prohibits discrimination based on sex (including pregnancy and related conditions, sexual orientation, and gender identity), national origin, color, and religion.
  • The Americans with Disabilities Act, which prohibits discrimination against qualified individuals with disabilities and requires reasonable accommodations that allow the employee with a disability to perform the job.
  • The Genetic Information Nondiscrimination Act, which prohibits discrimination against employees based on their genetic information (which includes family medical history).
  • The Family and Medical Leave Act, which requires employers to provide job-protected leave to qualifying employees for an ever-growing list of reasons for up to 12 or 26 weeks in a 12-month period.
  • The National Labor Relations Act, which says that discriminating against an employee because of protected concerted activity, or to encourage or discourage membership in a labor organization, is unlawful.
  • State or local anti-discrimination laws.
  • Laws that prohibit retaliation (all of the above, plus a lot more).
  • State laws that prohibit employers from taking action against employees based on their lawful use of lawful products during non-working hours.
I could go on and on, but you might need to finish reading this post before Veterans Day. Oh, dang, I forgot to mention USERRA!

And there's more. The modern employment-at-will doctrine has its own set of exceptions. The exceptions vary from state to state, but generally -- and at a minimum -- employment at will does not apply if an employer terminates an employee for a reason that violates "public policy," or that is discriminatory or retaliatory under state law.

You may be thinking, sure, but how about an employer who really does fire an employee for no reason? Surely that employer would be in the clear, thanks to employment at will?

Not necessarily. If an employer terminates an employee for no reason at all, the employee is not likely to think, "Darn it! I was terminated for no reason at all. Guess it won't do me any good to talk to a lawyer."

Only in Fairyland . . . 
That isn't the way our minds work. Instead, the employee will be racking his or her brain trying to figure out the "real reason" for the discharge. And here's what will come to mind:
  • (if the employee is 40 or older) "It must have been my age."
  • (if the employee is a certain race, national origin, (etc.)) "It must have been that."
  • (if the employee has a medical condition) "It must have been my disability." 
  • (if the employee engaged in any legally protected activity) "It must have been that."
And if the employee has any trouble determining a reason, then plaintiffs' lawyers are standing by and ready to assist.

Regardless of employment at will, when an employer terminates an employee, it should have a legitimate reason for doing so. Supported by some documentation and -- in the case of poor performance, attendance, or an accumulation of non-serious rule violations -- progressive warnings. If the employer has no reason, the employee and the employee's attorney will be free to argue that the true reason was an illegal one, and judges and juries are likely to believe it.

Employers who think they can rely on "employment at will" as the sole reason for terminating an employee are asking for trouble.

Now let's go back to the man in Karla Miller's column. The employer had a no-beard policy. This man had a medical condition and got permission from the appropriate people in the company to keep his beard. But his boss told a co-worker that she would never promote him. The column doesn't say, but I'm going to assume the man's medical condition was pseudofolliculitis barbae. Men with this condition get ingrown hairs that cause painful skin lesions when they shave. Black men are most susceptible to this condition. The simplest cure is to grow a beard, or at least not to shave closely. 

There are court decisions saying that no-beard policies without exceptions for men with pseudofolliculitis barbae can have a disparate impact on Black men and can therefore be discriminatory. I suspect that the condition is also a "disability" within the meaning of the Americans with Disabilities Act -- at least, since the ADA was amended in 2009 to have a much broader definition of "disability." We don't know this man's race. But if he's Black, and if his boss prevents him from getting a promotion because he can't shave because of an ADA-protected medical condition that primarily affects Black men . . .


Employment at will is going to be no help to this employer at all.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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