How will anyone know if an employer fires an employee for an illegal reason?

Question

From the Wiki article "At-Will Employment":

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?

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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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Update:

Azor Ahai -him- was right in this comment:

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.

based on this question: Regarding a PhD Advisor Rejecting Student Due to Health Problems.

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

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.

Answer 7

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.

Answer 8

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.

Answer 9

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.