6 Illegal reasons for firing an Employee

Almost all employment in the United States is at-will. (Montana is the only state that doesn’t have at-will employment as a default. Unions or a contractual obligation for a particular position are the other exceptions.) That means you can fire someone for any reason or no reason as long as that reason isn’t prohibited by law.

So, technically, you can walk up to an employee and say, “I’ve decided to fire you. No reason,” and it’s legal. Or, “Your shirt has vertical stripes, and I prefer horizontal stripes, you’re fired.”

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But, that doesn’t mean that every employment termination is legal. In fact, there are numerous reasons why you cannot fire an employee.

You can, of course, fire someone of any race, just not for a reason because of their race. This is true for all races — you can’t fire a white person to make a place for a person of color any more than you can fire a person of color because you prefer to hire white people.

Along with race come ethnicity and national origin. In the US, you are not required to hire a person who needs company sponsorship for a visa. But, if the person is already authorized to work or is a US citizen, you can’t discriminate on the basis of their national origin or ethnicity.

It’s illegal to fire someone for being a male or female. Federal law is clear that you cannot discriminate on this basis. A question that hasn’t been wholly settled is discrimination against transgendered employees.

So, most likely you’ll find yourself in court if you fire someone for being transgender. Likewise, the courts have been clear that homosexuality is protected as well. Employers need to err on the side of kindness and communicate that — no matter the circumstance of the firing — the termination was in no way related to gender identity, sexual identity, and so on.

Whether a person is an evangelical Christian, Muslim, or an Atheist, their religious beliefs (or the lack thereof) are protected. Exceptions exist. For example, if you are a temple — if your Jewish Rabbi converts to Christianity, you can fire him, but in your for-profit business, forget it.

If a Muslim employee doesn’t want to handle alcohol, for example, and the only time the situation comes up is once a year at the company holiday party, you can reasonably accommodate the person’s wishes. If, however, a Muslim employee doesn’t want to handle alcohol and your business is a bar, it would probably be reasonable to fire him.

The Americans with Disabilities Act prohibits firing someone because of a disability — real or perceived. You cannot terminate someone for being disabled and you have to provide reasonable accommodation for an employee with a disability. Reasonable accommodations vary from business to business and job to job.

Most likely it is a reasonable accommodation for a diabetic marketing employee to keep food at her desk and eat it when needed. At the same time, it is not a reasonable accommodation for a diabetic employee who works in a manufacturing clean room to keep food in her pocket.

Age is unlike the others because you can (technically) fire someone for being too young, but not for being too old, as long as that old is over 40. After 40, the Age Discrimination in Employment Act (ADEA) kicks in. You can’t fire someone for getting old.

If you are even thinking about this, remember that someday, you too will be over 40. You’ll appreciate the legal protection while you have the opportunity to maintain your professional relevance.

Pregnant women are protected under the Pregnancy Discrimination Act. Just because a woman will need to take some time off isn’t a sufficient reason to fire someone. If a woman has worked for you for 12 or more months, you have 50 or more employees, and she’s worked at least 1250 hours in the past year, she’s also protected by the Family Medical Leave Act, which means you need to give her up to 12 weeks of protected leave to deal with the pregnancy, birth, and bonding with the new baby.

Remember, these laws protect you from firing people for these reasons but they don’t protect employees from employment termination for other reasons. The best practice is to terminate only after a failed performance improvement plan, for cause(such as stealing), or a layoff. Otherwise, approach any employee termination fairly and professionally and follow the law.

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