Setting fire to your manager’s desk in some countries may earn you a verbal warning. Well, that may be an exaggeration, but, unlike California, there are places in the world where employment laws governing termination make it nearly impossible for an employer to fire an employee. On the opposite end of the spectrum, everyday employees in California brave the working world, accepting the risk they can be fired for any reason or no reason at all. This is because employees in California are considered at-will employees. At-will employees can be terminated from their position of employment without cause. In other words, the employer is not obligated by law to provide a reason, nor even a just reason, to fire an employee. Therefore, an at-will employee can be fired from their job for any reason or no reason at all. How crazy is that? But of course, like many areas of the law, there are exceptions to these freedom employers have.
Your employer can indeed fire you because they do not like you or they were just having a bad day, however, they cannot fire you for an illegal reason. An illegal reason would be to fire you based on your belonging to a protected class. A protected class you say? Yes! A protected class means particular people whom the law recognizes to have protection from discrimination in the workplace. Some of these classes that are protected are race, gender, disability, sex, sexual orientation, medical condition, pregnancy, religion, and age. There are many sub-categories within those classes, which provide details of who and how the law protects members of those classes.
But how exactly does the law “protect” the members of the protected classes? The law places upon employers certain duties that they are obligated to abide by in the workplace. The law also identifies specific behaviors and actions that are deemed discriminatory. Below are a few forms of acts and behavior that constitute discrimination in the workplace.
One way an employer may demonstrate discrimination is through refusal to promote an employee. Denying an employee a promotion by default is not discriminatory, however, it becomes a form of discrimination when the refusal is based on the fact that an employee belongs to a protected class or even if it is presumed that an employee belongs to a protected class.
For example, Mick, an employee at a marketing firm had been having issues with the manager of his department. His manager Ned had on numerous occasions made jokes about homosexuality and speculated that Mick had feminine mannerisms. Ned’s teasing would bleed into the professional side of the business when Mick would request to take on certain accounts and would be denied because Ned claimed, “these were serious clients who needed a ‘Man to Man’ mentality”. Mick had never disclosed to any person at work his sexual orientation or his private life, yet Ned’s personal opinion of Mick continued to negatively impact his work life.
Here, whether Mick identified as gay or not, Ned’s jokes and denial of employment opportunities such as taking on the account may be construed as sexual orientation and/or sex discrimination. Keep in mind that denying Mick the account within itself is not discrimination, however, his refusal because he is presumed to be gay is discriminatory.
2. Making your work life difficult
Another technique discriminatory masterminds use to terrorize their employees is making a particular employee’s work life difficult. Now, this isn’t just your boss giving you grunt work or scheduling you during the main shift that no one else wants; somebody has to do those tasks. What we are talking about here is where an employer delegates tasks or shifts or manages you in a way because you are a member of a protected class. For example, Larry, an employee at a food and beverage kiosk in the mall, lost his arm in a car accident a few years before obtaining his employment at the mall. Although Larry was missing an arm, with certain adjustments made by management, Larry was able to carry out his tasks. Larry was happy at his job but recently the new manager Tina fired him. Upon Tina’s hire, she was very skeptical of Larry’s disability, often making comments regarding his capability, “How are you able to even do anything with ONE arm? Don’t you want to retire? If I were you I wouldn’t bother even trying to work!” Tina’s skepticism was also reflected in the way she arranged the scheduling. Because Larry only had one arm, his doctor cleared him to work but advised Larry to take a 15-minute break every four hours. Before Tina worked at the food and beverage kiosk, Larry’s managers always accommodated him so that he could take his 15-minute break every 4 hours. However, Tina began scheduling Larry for only 3-4 hour shifts as opposed to his regularly assigned 8-hour shifts, stating that since he needed a break every 4 hours “ he might as well go home”. This caused Larry financial hardship. He made a complaint to Tina as well as Human Resources regarding the unfair treatment he was being subjected to, only to be fired a week later due to ‘poor work performance’.
Here, Tina should have continued to provide reasonable accommodation to Larry for his disability. By refusing to provide reasonable accommodation in combination with the comments Tina made, Larry was being treated differently from other employees in a negative manner, based on his disability. Therefore, this would be disability discrimination as well as wrongful termination.
3. Retaliation
Another way an employer may discriminate against an employee with a disability is by retaliating against the employee. Retaliating against an employee may occur when an employee either makes a complaint about being treated unfairly regarding their disability, or it can take place when an employee requests a reasonable accommodation for their disability. The employer may demonstrate retaliatory behavior by writing up the employee or even terminating him or her because this particular employee made the request or the complaint regarding their disability.
Above are just three examples of situations that occur regarding disability discrimination. There are many other ways an employee with a disability may be unlawfully treated due to his or her disability. For more info and free consultation contact an employment lawyer.
