Demystifying the Discrimination in Employment Legal Process Part One
by Gabriel Pinilla, Cotney Construction Law
(Editor’s Notes: Gabriel Pinilla is the managing partner of Cotney Construction Law’s Denver, Colorado, office. He is a seasoned, results-oriented business and construction law and litigation attorney. Pinilla’s practice encompasses state and federal court litigation from pre-trial through the appeals process, as well as serving clients with negotiation and transactional needs. For more information, go to www.cotneycl.com.)
Whether you are just starting up in roofing or have been around for decades, you know that your enterprise success depends on your team of employees. At some point, employees and employers must part ways, and this year’s pandemic has forced business owners in the roofing industry and across the entire economy to make difficult choices about their workforce.
When the labor market is tight and employees can move readily into new positions, employee separation is not usually a show-stopping event. Where opportunities in the job market at large are scarce, such as the current situation, termination of an employee can take on a higher-stakes dimension. Most business leaders understand that personnel management requires a thoughtful approach in general. While business judgment, not legal analysis, must be the primary driver in such decisions, knowledge of basic employment law matters and incorporating an approach that factors in the legal process is essential to managing risk in the context of employee termination decisions. This article is part one of a two-part series that will discuss the basics of employee terminations and dives into the legal process of discrimination claims.
Most states adhere to an at-will employment policy. That means that, generally, employers can hire or fire any employee for any reason or no reason, and employees are free to seek out and to accept employment of their choice. Sounds simple enough, but, as usual, the large print giveth, and the small print taketh away. In this case, the small print is the exception to this general rule. Although this can vary somewhat state-to-state, restrictions on an employer’s right to terminate any employee generally include the following.
It is unlawful to discriminate against any person in the employment context, including termination of employment. Generally, unlawful discrimination is recognized as regarding to disability, race, creed, color, sex, age, religion, sexual orientation, national origin, and ancestry.
Violations of Public Policy or Retaliation
It is unlawful to terminate an employee for a reason that violates public policy. This includes all manner of retaliatory termination, such as firing an employee for asserting their right. Other public policy examples include terminating an employee for serving on jury duty, for filing a lawsuit or taking other legal action, for refusing to commit perjury, or for engaging in whistleblower activities.
Where an employee is employed pursuant to an enforceable employment contract, termination will have to align with the relevant contractual terms. Failure to adhere to these exceptions to at-will employment can lead to significant civil liability exposure. This is particularly true in the case of employment discrimination laws, most of which are written with disadvantaged employees in mind and can result in hefty liabilities against non-compliant employers.
The starting point to avoid such pitfalls is to know the rules and the process so that, as an employer, you can approach your HR policies and decisions accordingly. Outlined below are the basic law and procedures relating to employment discrimination and highlight how discrimination cases tend to be fought and can be avoided.
There is a battery of federal statutes prohibiting discrimination of various kinds. Many of those statutes apply only to companies with a certain minimum number of employees. Many states also have their own anti-discrimination statutes at the state level. Often, the parallel state laws do not limit enforcement by the size of employer or number of employees. Generally, whether at the federal or state level, these employment discrimination laws make it unlawful to base an adverse employment decision on the basis of any of the protected class characteristics. Many such laws also prohibit setting out discriminatory preferences in any advertisement soliciting employee applicants. Knowing these prohibitions and understanding protected class status is your first means of avoiding conduct that violates applicable employment discrimination laws.