Director of Technology & Staff Reporter (2021 – 2022)
Most of us have been at-will employees at one point in our lives, and we have a common understanding what, in general, that means: we can be fired at any time for any reason. This is known as the at-will doctrine. It is also true that there are federal protections in place to limit employers’ ability to fire employees for discriminatory reasons. How do the at-will doctrine and anti-discrimination laws co-exist? At first blush, these two concepts may appear to be irreconcilable, but, as this article will demonstrate, it is not quite that simple.
While multiple anti-discrimination laws have been enacted, this article will focus on the protections established by Title VII of the Civil Rights Act of 1964 and how those protections are reconciled with the at-will doctrine.
What Are the Protected Classes Under Title VII?
Title VII protects an employee from discriminatory employment practices when the discrimination stems from the employee’s status as a member of one (or more) of five classes: race, sex, color, religion, and national origin.1 Sex-based discrimination extends to discrimination because of pregnancy and medical procedures related to pregnancy.2 More recently, the Supreme Court held that an individual’s sexual orientation or transgender status are also protected classes because of one’s sex.3 National origin may refer to a currently-existing country, a formerly-existing country (Czechoslovakia, for example), or a geographic region.4 What is critical, for purposes of Title VII, is that an employer’s adverse actions (i.e., firing, discipline, etc.) against an employee are motivated at least in part5 by that employee’s status as a member of a protected class.6
At-Will Employment: What Do I Need to Know?
Although today we commonly view at-will employment as a negative for employees, it was originally intended to be beneficial to labor. Workers could leave their jobs whenever they wanted. Capital realized this works both ways: at-will employees can be fired whenever the employer wants, for any reason or no reason at all.7 This naturally begs a couple of questions.
First, how do I know if I am an at-will employee? An at-will employment relationship exists if the agreement between the employer and employee does not specify an intended length of employment, and where there is no specific provision within the agreement that limits the employer’s ability to fire the employee.8 The employer consequently has wide latitude to make employment decisions without having to show good cause for those decisions.9 This leads to the second question: how does an employer’s ability to fire an employee for any reason at all square with Title VII, which protects against employment discrimination?
At-Will vs. Anti-Discrimination: What’s the Bottom Line?
The answer to the second question is not as simple as we might imagine it to be, and not as advantageous for employees as many of us might wish it to be. Congress intended Title VII to eliminate from the workplace only the most egregious forms of discrimination.10 In this way, Title VII functions as a narrow exception to at-will employment as opposed to a tool to “promot[e] equality with mathematical certainty.”11 Consequently, disparate treatment—one of the elements a plaintiff has to prove to establish a violation of Title VII by an employer—is, by design, a high bar to meet.12
A plaintiff proves that she has been subject to disparate treatment when—taking a nearly identically situated coworker who is outside of the plaintiff’s protected class as a point of comparison—the plaintiff can show that she was treated worse by the employer than the similarly situated coworker was treated under the same circumstances for the same conduct.13 The employee with whom the plaintiff is comparing herself must be similar enough that it would be reasonable to conclude that discrimination is the motivating impulse when the two employees work under the same supervisor, are subject to the same standards, and engage in similar conduct.14 If the plaintiff can establish this, then the court will look to the employer to provide a legitimate nondiscriminatory reason for the employer’s actions, which the employee, in turn, can only overcome by proving that the reason provided by the employer was pretextual rather than legitimate.15 Thus, in a wrongful termination case, it is not enough to prove that you, as a plaintiff, are a member of a protected class under Title VII, nor is it enough to establish that you were qualified for the position, and that you were subject to an adverse employment action (no matter how unwarranted or unkind) by your employer.16 There must be evidence that your employer’s conduct would have been different had you not been a member of a protected class.17
Title VII is not—nor was it ever intended to be—a balancing force against at-will employment. Instead, Title VII operates as a narrow exception to filter from the workplace the most blatant of discriminatory abuses. Wrongful termination cases brought under Title VII are meant to be hard to win.18 The challenge of winning only becomes greater in an at-will employment relationship.
1 2 U.S.C.A. § 1311 (West, Westlaw through Pub. L. No. 117-41).
2 42 U.S.C. § 2000e(k).
3 Bostock v. Clayton Cty., Ga., 140 S.Crt. 1731, 1754 (2020).
4 U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016).
5 It is important to note that a person’s status as a member of a protected class does not need to be the sole motivating factor in an adverse employment action for Title VII to be violated.
6 45B Am. Jur. 2d Job Discrimination § 940, Westlaw (database updated August 2021).
7 Murphy v. American Home Products Corp., 58 N.Y. 2d 293, 300 (Ct. App. N.Y. 1983).
8 Murphy, 58 N.Y. at 300; Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 350 (2000).
9 Chuck Henson, In Defense of McDonnell Douglas: The Domination of Title VII By the At-Will Employment Doctrine, 89 STJLR 551, 554 (2015).
10 Id. at 553–54.
11 Id. at 564.
12 Id. at 586.
13 45B Am. Jur. 2d Job Discrimination § 941, Westlaw (database updated August 2021).
15 Friend v. McAdams, No. 20-60456, 2021 WL 2413279, at *2 (5th Cir. 2021).
17 45B Am. Jur. 2d Job Discrimination § 940, Westlaw (database updated August 2021).
18 Henson, supra note 9, at 586.