I hate your face, that's why: A guide to at-will employment and dismissal policies

So you're filling out a job application. Or maybe you're one of the lucky ones who got a job and have now been handed an employee handbook or contract. Either way, chances are good you are reading a paragraph about employment at will. But what is it?

In most countries and in the U.S. in every state except Montana, which allows employees a probationary period, if you are employed at will your employer does not need good cause to fire you. More specifically, employees who do not have contracts guaranteeing employment for a specific period of time are considered to be at-will employees. Unfortunately most, if not all, documentation provided to employees fails to go into much more detail than that.

So what's this good cause business anyway? And what the hell is up with being able to fire you without it? Can your boss fire you for stinking up the bathroom or for having a stupid haircut or because you have an annoying laugh? Well...actually, yes, technically they can. Any reason not expressly prohibited by law (race, religion, gender, et al., as well as anyone protected under worker's compensation) is fair game for being a reason for dismissal. But employers tend to word this delicately. Personality conflict is pretty much the catch-all term for those grey area firings. It is not easy to tell someone "well, the thing is, everyone here hates you" even if it's true and the real, valid reason for termination. Workplace atmospheres are sensitive things, and anything that compromises the team's ability to get the job done is a liability in the end. Excessively argumentative, negative, or insubordinate employees are a bane on a productive workforce.

Whatever the reason, an employee who distresses the general populace in such a way that productivity is compromised has to go, and there has to be a humane, diplomatic way to make this happen, because even though at-will employees have very little legal recourse there are still lawsuit-happy sorts out there and most employers would rather not spend a day in court, even if they're guaranteed to win. The HR nightmare that ensues from a litigious erstwhile employee is enough to ruin everyone's day at least for a little while. A prudent HR person knows this and plans the exit interview accordingly.

Unfortunately, pretty wording often takes a bow in favour of "the law says I can do this, so I'll be god damned if I won't take full advantage of it." Wanna fire someone so you can hire your sister in his place? Cool beans as long as he slapped his John Hancock on that there at-will employment agreement. That is not to say it's right, but it certainly does happen. The only insurance against being constantly potentially on the chopping block is to be a contract employee. I will get into employment contracts in a future, more detailed write-up but for brevity's sake said contract, reviewed and signed by both employer and employee, outlines among other things the grounds for termination for the position, typically such no-brainers as failing to fulfill the terms of the contract (performance), illicit drug use, or illegal or unethical behaviour in the workplace. Dismissing the employee for any reason outside these grounds would be unlawful. At-will employees, however, receive no such protection as nothing is in writing and therefore legally binding, aside from the employee's compliance with the at-will employment agreement.

Unfortunately them's the grits, cowboy. Your boss may be a colossal douchebag and fire you for the dumbest reason ever, and there's a good chance it's unfair, but there's little justice to be had aside from the satisfaction of pulling up your pants and moving on to the next party, hopefully not moving on to be employed by another scurrilous bastard.

Sources:
http://www.nolo.com/legal-encyclopedia/employment-at-will-definition-30022.html
http://www.personal-injury-info.net/wrongful-termination.htm

For many years, I have thought of writing something on this subject, but was stymied because I am neither a human resources specialist nor a lawyer, or anyone else who can speak authoritatively on the matter of employment practices. I am just a concerned America, by which I mean someone who is going to rant on the internet. And in fact, I am going to speak about the larger issues involved, which are just as important for housing and any other application of Equal Opportunity as they are for employment as such.

With that in mind, let me tell a story that has been on my mind for year. I used to belong to a non-profit, as a volunteer and later as an employee. This non-profit was just chock full of progressive ideas and projects and people. It involved computers, environmentalism, social activism, and was also run (at the time) as a community-based organization, and as a worker collective. The entire story of this particular non-profit's descent into being another cog in the realm of corporate allied Public Relations is another story entirely.
But back in the middle part of the last decade, there was one worker there. Unlike many of the workers and volunteers that made up the community, she was older, had a child, and was also quite overweight. She was employed as a temporary employee, as a receptionist, for six months. Running concurrently with her employment, there was another temporary employee, who was also older, but who male, childless and more physically fit. At the end of their temporary employments, the women was let go, and the man continued on as a full time employee.

This is, of course, a single story, and there are many subtleties to the story left out. And the reader can probably remember a very similar story of their own. The point of this story is not just that Portland hipsters are a hypocritical lot (although if that is a lesson you need to learn, please learn it), it is that employment law, like most equal opportunity law, prevents discrimination against people who who members of a group, but not against people who are (as the title so bluntly states) somehow unlikeable. While this may be obvious, the complications and morality of it are more ridiculous with the more we think about it.

First, the complications: when is it the individual who is being discriminated against, and when is it their group? Lack of professional appearance is an (understandably) legitimate reason for someone being unable to hold a job. But what does "professional appearance" mean? Take, for instance, an African-American employee working as a bank teller. Perhaps such a person having a hairstyle deemed too casual would be a good cause for dismissal. Certain popular hair styles for blacks, such as dreadlocks or cornrows, maybe have connotations that are inappropriate for a bank teller. But there are also biological restrictions to how black people can wear their hear. So at what point would a bank firing an employee for having an "unprofessional appearance" move from being a justified (or even totally, totally unjustified) decision on an individual, and become a blanket discrimination against people of that race?

Somewhere, this court case probably exists.

Another case could be like the one that I mentioned above: when someone has multiple categories that might make them undesirable, some protected, some not. Discriminating against someone for being female is unlawful, but happens frequently and is hard to prove. Discriminating against someone because of their age is unlawful, but happens frequently and is hard to prove. Discriminating against someone because they have children is (I believe, at least in most states) unlawful, but happens frequently and is hard to prove. Discriminating against someone because they are overweight, don't dress right, or just aren't "cool", is not unlawful, but perhaps could be seen as such, which is why those things are never mentioned. And while there are probably a few high profile employment cases every year, at the same time there are millions and millions of Americans who are demoted, passed over for promotion, stuck in dead-end career tracks, or are the first to be laid off, because they somehow fall short of social expectations that have nothing to do with their job. Some of these are theoretically protected, others are not. In many (or probably most) cases, the human resources people are unaware that they are being discriminatory. When they decide that Mary isn't the right one for a promotion, they say to themselves that she doesn't seem to have the ambition to handle a high stress job--- they don't say that she has a young child, and won't take her job seriously. When Joseph is turned down for extra training in technology, they say to themselves that he isn't "flexible" or "innovative"--- not that he is 46, and can't handle computers. And so, the discrimination goes on constantly, with most people unaware that they are discriminating or being discriminated against.

There is also a fair amount of hypocrisy involved in these decisions. Whatever the complicated issues involving government, business and the individual, hypocrisy is easy to hate. I have to admit that many times I have gritted my teeth at hip, trendy liberals who enthusiastically support gay rights, who are totally unaware, or don't care, that they are discriminating against people who are less fashionable in their hardships, such as older single mothers.

While there are many complicated issues, my own instinct is that the belief that somehow it is totally allowable to discriminate against an individual, but forbidden to discriminate against a group, is not morally feasible.