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From wiki:

At-will employment is a term used in U.S. labor law for contractual relationships in which an employee can be dismissed by an employer for any reason (that is, without having to establish "just cause" for termination), and without warning,1 as long as the reason is not illegal (e.g. firing because of the employee's race, religion or sexuality).

If I'm an employer and want to fire an employee

  • for a reason like I ask the employee to do something criminal (or illegal but not criminal) like commit fraud or deal drugs or something against public policy

  • or in retaliation against the employee for a protected action taken by the employee

  • or family or medical leave

  • or for reason of race, religion, sex, sexual orientation or disability

then why don't I make up some dumb whatever reason to fire the employee and thereby get away with discrimination?

I mean, if I can fire an employee because, say, I was bored and I just wanted to fire someone for the hell of it, and if this is allowed, then why can't I make use of this to fire an employee for reason of race, religion, sex, sexual orientation or disability?


Edit: Something I thought of last night:

ah well i guess that's why not everywhere is 'at-will' but personally i think if you really wanted to protect, say, people with disabilities, i figure there would need to be 'just cause' to really ensure employers don't abuse the freedom given in at-will employment

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    It turns out that people dumb enough to fire someone because of their race are occasionally dumb enough to brag about it or make their intentions known. – Azor Ahai -- he him Aug 6 at 18:35
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    Personally i think if you really wanted to protect, say, people with disabilities, i figure there would need to be 'just cause' to really ensure employers don't abuse the freedom given in at-will employment. Exactly. That's why most other developed nations don't have "at will" employment contracts. They're just loopholes. – henning -- reinstate Monica Aug 7 at 15:14
  • @henning--reinstateMonica right. thanks. – BCLC Aug 8 at 7:53
  • @BCLC Sorry but "How will anyone know…" could never have anything to do with whether the employer fired someone for an illegal reason. Is that much truly not clear? You seem to be confusing content with process. Does that make sense? Could you take that one back and replace it with a better Question? – Robbie Goodwin Aug 8 at 22:40
  • #ThirdWorldProblems – Studoku Aug 9 at 0:24
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There is a rather elaborate three step analysis that is done in civil rights cases under U.S. precedents.

Circumstantial evidence, as opposed to direct evidence of discrimination (which is less frequently available to plaintiffs), is analyzed under a three-part test created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

STEP 1/prima facie case (burden on plaintiff)

They belong to a protected class (or the person taking the action thought that they did and alleged acted on that basis)

They were qualified for the job and performing in accordance with the expectations of their employer

Employer terminated their employment

The employer replaced plaintiff with an individual who was comparably qualified to the plaintiff, but not in the protected class.

STEP 2 (burden on defendant)

Employer must produce evidence that its actions were the result of legitimate and non-discriminatory reasons

STEP 3 (burden on plaintiff)

Employee must prove that the non-discriminatory reason(s) offered by the employer in Step 2 were not true reasons, but were a pretext for discrimination based on age.

In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-7 (2000), the Supreme Court held that “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Also, Reeves allows the trier of fact to consider the evidence used to establish a prima facie case of discrimination (first prong of McDonnell Douglas) when they are deciding the final prong of McDonnell Douglas framework. Notably, the Supreme Court later held that “[t]he reason for treating circumstantial and direct evidence alike is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, (2003) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17 (1957)).

The "quote" above adapts and closely paraphrases this source.

A jury doesn't have to believe the testimony of the employer and discovery through depositions and written communications and historical hiring and firing patterns can all be used to provide evidence that the claimed reason is pretextual.

There are more than a dozen tactics for proving that a claimed reason is really a pretext for an invalid reason at trial.

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    Presumably the end of the first paragraph of Step 3 is not specifically about age discrimination, but about any protected status. – TripeHound Aug 6 at 22:36
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    @AdamBarnes: The US's civil rights laws are complicated and patchwork. For example, it's illegal to discriminate on the basis of age against people over forty. On the other hand, it's illegal to discriminate on the basis of sex, period. Many of these laws also vary by state or even municipality. Before Bostock, LGBT+ individuals had protection in only some states (and even after Bostock, it's likely that the precise contours of the federal protection will continue to be the subject of litigation, as that case was a rather open-and-shut example of discrimination). – Kevin Aug 7 at 7:16
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    Firing someone because they are gay is illegal. Firing someone because you incorrectly believe they are gay is just as illegal (in the USA and UK, most likely in other countries). So you don’t need to belong to a protected class to be protected. – gnasher729 Aug 7 at 10:05
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    "Employer must produce evidence" does that suggest a presumption of guilt rather than the traditional presumption of innocence? – Barmar Aug 7 at 14:35
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    @Barmar -- although it's not stated, this answer (and the question) appear to be about civil actions, i.e., fired ex-employee sues ex-employer. The presumption of innocence applies to criminal actions, i.e., government accuses ex-employer of committing a crime. – PJB Aug 7 at 15:45
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Indeed, in the United States, employees without a written employment contract generally can be fired for good cause, bad cause, or no cause at all.

The quickest answer would be that in cases where the employer has fired someone without due cause and they are indeed under no written contract, and their state does not protect them against such actions - and it is not obvious to the employee that they're being fired due to any illegal reasons - then the employer will of course, likely get away with firing them for any reason under the sun....

Major exceptions depend on the state - and include Public Policy Exceptions, Implied Contract Exceptions and Implied-in-Law Contracts. See here.

Thirty-six U.S. states (and the District of Columbia) also recognise an implied contract as an exception to at-will employment. Under the implied contract exception, an employer may not fire an employee "when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists.

Court interpretations of this as well as implied law contracts (good faith and fair dealing) have varied from requiring "just cause" to denial of terminations made for malicious reasons, such as terminating a long-tenured employee solely to avoid the obligation of paying the employee's accrued retirement benefits. Other court rulings have denied the exception, holding that it is too burdensome upon the court for it to have to determine an employer's true motivation for terminating an employee. (see here)

It is particularly burdensome for the court to truly find out the reasons for wanting somebody fired - as the evidential reasons may not exist in a material form and may just be at the petty discretion of an employer.

It has attracted a lot of controversy, as in many instances, people can be dismissed for no apparent reason at all. Some hail this law, however, as one of the strengths of the US economy and behind the success of Silicon Valley (for example) - here.

As to what you say:

why don't I make up some dumb whatever reason to fire the employee and thereby get away with discrimination?

If these dumb reasons end up actually being illegal - (which is not uncommon!), and that is discovered - you are potentially liable for wrongful termination.

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  • thanks! is the whole of your answer under the assumption of no written contract? if so, then why? if not, then which part assumes written contract? i mean, of course we want to assume written contract...i think – BCLC Aug 8 at 8:00
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    The ability to apply an 'at-will' dismissal implies that there is no clause within a written contract (if one exists) to prevent such 'at-will' dismissals from happening. For example, in my tenured contract I could not be dismissed 'at-will' by my employer (if we were in the US). When an employee is acknowledged as being hired "at will," courts deny the employee any claim for loss resulting from the dismissal. – DrDee Aug 8 at 9:13
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    btw i just saw your profile. you're about to have both a law degree and a medical degree? nice – BCLC Aug 9 at 4:42
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    @BCLC Well from what I understand, employment is allowed to be at will in most of the US, meaning (among other things) that employers aren't generally required to give a reason when firing someone. Did you understand it differently? If so, could you clarify what you think you screwed up? I'm not sure it's clear from your comment. – David Z Aug 9 at 21:17
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    @BCLC Ah, thanks for the clear summary. So as far as I understand it, employment in most states is at-will unless the employer and employee agree to an enforceable contract whose terms specify otherwise. (For most types of jobs, these contracts are quite rare though.) If by "automatically" you meant "by default, unless specified otherwise", then it's possible you might have had it right in the beginning. – David Z Aug 11 at 3:50
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The reason to not make up a dumb cause for firing a person is that they will argue that you are discriminating on the basis of e.g. religion, and then the two sides will present their evidence. It is highly likely that if you have a hatred of the person's religion, you will have provided them with some kind of supporting evidence in the form of your behavior – a tweet, a snide remark, similar behavior with other employees. The courts don't just consider "what the boss testifies to", they consider all of the evidence. There is a good chance that the plaintiff will have amassed additional evidence of their illegal motivation, whereas you have the patently lame claim "I was bored" (seriously?). The courts weigh the evidence and look to see where the balance of probabilities lies. The boredom theory, especially a fictitious one, is quite implausible – it is counter to ordinary experience, and demands supporting evidence.

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    re boredom: boredom is just an example...albeit an extremely weird one. or you know maybe i was having a bad day and to compensate i wanted to get a dopamine high through the sadistic rush i get when i fire someone. or because certain planets were aligning and it is good luck to fire someone on that day day if you're an employer, according to my religion boredafarianism. – BCLC Aug 7 at 5:57
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    @BCLC The balance of the evidence would still strongly imply that a protected group that you have demonstrated animus against is ultimately the guiding factor in your choice of who to get your rush from. You'd be hard pressed to convince a court or jury that you're the type of person who picks on the empowered people you really like rather than go for the historically disempowered group you dislike. And if you want to claim some sort of religious exemption you'd have to convince the court you have a legitimate set of closely held beliefs, and not some juvenile asshattery you named. – zibadawa timmy Aug 7 at 8:15
  • @zibadawatimmy lol ayt thanks! – BCLC Aug 7 at 10:53
  • anyhoo thanks user6726. i'll still have to read your answer and the other answers more thoroughly – BCLC Aug 7 at 10:54
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Not all jurisdictions allow you to fire without a valid reason. But even places that do, there is a lower standard of proof in civil cases. Lawsuits only require the judge or jury believe it is more likely than not that the firing was for a bad reason (unlike a criminal trial where the standard is “beyond a reasonable doubt”).

If you hire a male employee who starts wearing a dress to work years later and you fire them immediately but say you were going to do it anyway because he always filed his work chronologically rather than alphabetically, a judge might think you are lying. Whoever he thinks has the more likely story wins.

(edit) Some additional info:

Courts generally assume the worst when a party withholds evidence/information. So you could just say you have no legal obligation to say why you fired the employee but that would be held against you.

But most employees do not sue when they are fired so as a practical matter at-will jurisdictions can be better for the employer. You will not have to give a reason until the employee can make a convincing enough case to start litigation. It essentially shifts the burden of proof to the employee.

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    While not related to this question, there is at least one very notable exception to "Courts generally assume the worst when a party withholds evidence/information" - the 5th Amendment. Criminal courts are not allowed to "assume the worst" when a defendant maintains their right to remain silent; to do so would effectively nullify the 5th Amendment and therefore be unconstitutional. – Dan Henderson Aug 6 at 18:13
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Keep in mind how that mechanism works. This question coming up isn't a longshot: it will definitely come up when the employee applies for unemployment benefits.

The employer pays a fraction of unemployment benefits, so they have a stake. A termination for cause leaves the employee ineligible for unemployment benefits.

The employee will file claiming they were terminated improperly. The employer will be notified of the claim, and will be given an opportunity to challenge the application. This is it. It's showtime. Now is when the employer must trot out their fake reasons for a for-cause firing.

And it happens very early, and very fast, and quite informally compared to proper litigation in Big Court in front of a jury. There won't be the usual months to prepare, weeks of coaching with your counsel, endless maneuvering, none of that. The relevant parties have to show up and appear in front of an employment judge who does nothing but employment claims, and 95% of that caseload is disputes over whether a firing had legitimate cause. This happens in an office, usually parties only and the judge, and it takes maybe 20 minutes.

The relevant parties get pulled in, get directly interviewed, the line manager blunders through an oh-so-clever explanation sure to fool the judge (not likely; the judge has seen it all before)... and in 20 minutes, it's over. Yes, the results can be appealed in Big Court, but here's the important part, what was said in this less-formal process is part of the court record.

So now, when the company or employee is unhappy with the result and goes to Big Court, the blundering foolishness of the line manager is locked in, and the company's defense must now work around that. Awkward.

A wiser strategy for the company would be to acquiesce to the unemployment claim; but then, if the victim sues for wrongful termination, they must explain why they acquiesced.

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  • thanks! just wondering, is this indeed applicable to the US? coincidentally, i believe this is applicable in where I live and in the UK (i'm not saying whether or not i live in the UK! Haha) – BCLC Aug 8 at 7:58
  • The question states USA so yes. Can't tell you on the UK. – Harper - Reinstate Monica Aug 8 at 12:33
  • Thanks. Can you help here in this other comment thread please? I think I must've misunderstood. I thought everywhere in the US except certain states is automatically at-will. If this is wrong, then this would explain why I wondered if your answer is indeed applicable to the US – BCLC Aug 9 at 4:40
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then why don't I make up some dumb whatever reason to fire the employee and thereby get away with discrimination?

Because you have to convince a jury that the dumb reason you made up is more likely to be true than false.

If this was a real obstacle, then almost all criminal convictions would be impossible. In almost all criminal cases, the prosecution has to establish the defendant's intent. And the prosecution doesn't just have to prove their intent was more likely than not to be true -- they have to prove intent beyond a reasonable doubt.

You don't follow a person until they're in a secluded area, pull out a gun, and shoot them in the head because you wanted to feel the gun's recoil. Often there's lots of evidence to establish that the made up dumb reason is just that -- made up and implausible.

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    In Germany, your gun example would actually be the worst defense that you could possibly try. If you kill someone for a really bad reason like this, we would have to assume that once out of jail you would again have stupid reasons to kill, so we can’t possibly let you out of prison. There was a woman who shot the killer of her son in court - 99.9999% that she isn’t going to do that again. – gnasher729 Aug 7 at 10:10
  • @gnasher729 Here, there's a pretty big difference between intending to kill someone and doing something incredibly stupid that could result in someone's death and does. The former is worse. I do question Germany's logic though -- lots of people do stupid things all the time, when it results in death, it's often more due to bad luck than anything else. (How many of us have done stupid things that could easily have result in grave injury but, by luck, did not? People often learn from close calls.) – David Schwartz Aug 7 at 16:38
  • No, what I meant is "killing someone for a stupid reason". Here in England there is someone in court right now who killed someone who was on the other side of the railroad tracks, because he didn't like the way that person looked at him. Stupid reason to kill someone - if that is a reason to kill someone, then surely the judge, the jury, all witnesses and everyone in the court room are now on his hit list. – gnasher729 Aug 7 at 22:03
  • @DavidScwartz But if the law said that you were allowed to, then you could. Consider "sword testing" killings in Japan, which were literally just a case of cutting down a commoner to see how the blade felt. That's why at-will employment is such a strange concept in the modern era, because it puts the employee into a near-feudal relationship with their employer where the employer can do virtually whatever they like with near impunity. In practise it's not hard to find a semi-plausible reason. – Graham Aug 9 at 9:12
  • @Graham But the same is true for almost everything. I can decide not to go to my local Taco Bell ever again because they hired a redheaded waitress. – David Schwartz Aug 9 at 23:57
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I agree with the other upvoted answers but would just like to add a bit of perspective.

I've worked for several companies located in at-will states, and even though they have the right to terminate someone without providing a reason, in practice they have all tried very hard to document real performance shortcomings. This is because they are very aware that an employee can open a case with the Equal Employment Opportunity Commission alleging discrimination. While this may not really be a major threat, most companies are very averse to litigation of any sort and will try hard to avoid it.

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  • Thanks. Actually my next question (that i would've made another post for) would've been 'if an employee were to sue an employer and win, then it seems employer's merely get a slap on the wrist while the employee has to take on the burden of finding another job. am i wrong?' so it seems i am wrong in re your 'While this may not really be a major threat, most companies are very averse to litigation of any sort and will try hard to avoid it.' - what makes you say this exactly please? – BCLC Aug 8 at 7:56
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    There have been very large sums awarded in discrimination cases in the past (hadsellstormer.com/settlements-verdicts). Although those are certainly outliers and it is more likely that even a successfull discrimination case would result in a significantly smaller settlement (perhaps limited to compensatory damages of lost wages, etc. and not punitive damages) litigation in general is expensive and a company will try to avoid it if possible, so it's in the company's interest to not turn a blind eye to potentially discriminatory firing practices. – user2597523 Aug 10 at 13:53
  • Thanks for answering the follow-up! – BCLC Aug 11 at 2:39
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It's just a fact of life that in practice there is often not enough evidence to "get justice." (Let alone the time and money.) I mean all forms of legal dispute, not just illegal termination.

The point of the court system is not to get to the truth. It exists because when the truth is clear, we ought to take action.

Ultimately, a lot of the time, the employer can make up a reason and get away with it, especially in small businesses. But there are cases where the employee can assemble convincing evidence; such as suspicious timing (termination immediately after "coming out"), or written threats of termination.

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  • If someone has fired three gay men "because he was bored" then the fourth one will have figured it out, and will win a court case easily. Of course a small enough business is unlikely to have several gay employees and therefore cannot fire several of them. – gnasher729 Aug 7 at 22:07
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why don't I make up some dumb whatever reason to fire the employee and thereby get away with discrimination?

Some employers actually try that, but that is illegal nonetheless. They resort to some pretext for the purpose of dissimulating their illegal motive, whether it is unlawful discrimination, retaliation, or against public policy. In that case, the burden of proof would shift to the plaintiff. See Hiatt v. Colorado Seminary, 858 F.3d 1307, 1316 (2017):

[A] plaintiff can establish pretext by showing the defendant's proffered nondiscriminatory [and/or nonretaliatory] explanations for its actions are so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude they are unworthy of belief.

(citations omitted, brackets in original).

That is what the law says. In practice, though, a judge can (and does) turn a blind eye on all the evidence that incriminates the employer and instead indulges in aberrant conduct. For instance, in a claim of wrongful termination, this judge felon gave the following lecture in court few minutes prior to closing the case:

The State loves insurance companies and it loves employers and it loves oil companies and it loves anybody's who's powerful. Okay? [...] if you're not in those groups, the[n] you just kind of have to try and stay away -- stay out of the way.

Judges' akin suppression of laws factually allows an employer to wrongfully terminate employees and get away with it.

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    With respect to the case of Dr Hiatt - did she have a written contract with the University? In which case an 'at-will' termination rule might not apply? I get your point about the case nonetheless though :-) – DrDee Aug 6 at 14:18
  • @DrDee I don't know about how Hiatt was hired. In most jurisdictions in the US, the at-will employment doctrine applies unless the contract provides otherwise. The contract can be, and usually is in writing, although that is not prerequisite. I cited Hiatt only because it in turn points to case law regarding the parties' burden of proof, and it would apply even if the employment contract explicitly overrides the at-will doctrine. – Iñaki Viggers Aug 6 at 16:17

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