Hostile Doesn't Mean MEAN: Understanding Employment Law

Dealing with employees also means dealing with their misconceptions about employment law. This blog entry highlights some of these misconceptions and reminds employers of the significance of employment at will. Notwithstanding misunderstanding to contrary, it is still generally and genuinely the case that an employer can fire an employee for any reason or for no reason. The exceptions to this principle created by federal and state anti-discrimination laws are significant, but they do not trump the rule. Moreover, the laws make discrimination illegal. They do not create a code of conduct for the workplace or set a general fairness standard governing decisions by employers.

Let's start with the general rule. Employees are employed at will. This means that an employer can fire an employee for any reason (performance or otherwise) or for no reason. Employees have the reciprocal right to leave their employ without notice and without reason. The notion is simple and, when clearly understood, functions to avoid unnecessary disputes and rancor. If employment at will governs a particular decision, there is really nothing to litigate about.

Title VII, click here for the statute, the principal federal law, and its state analogs (like chapter 151B in Massachusetts, click here for the statute) do not -- rumors to the contrary notwithstanding -- obviate employment at will. Instead, the laws make it unlawful to fire someone "because of" their membership in a protected class. Said differently, an employer can fire someone because she is not good at her job, but not because she is a she.

This concept doesn't seem complicated, but it creates enough of a specter of litigation so that employers tend to be hesitant to fire people who fall within a protected class. Indeed, when they consult counsel about such terminations, employers are often advised that they need to be able to show the reason for the termination (performance, absenteeism and so forth) in order to have comfort that they will not find themselves engaged in lengthy and expensive litigation.

It's good advice. Experience shows that employees often have trouble accepting that they failed and therefore choose to believe that they lost their job because of their age, gender, race, religion, or national origin (all protected classes). It is often easier for employees to believe that they were wronged than to accept responsibility for poor performance. So, employers should act cautiously when terminating members of protected classes and do so only when confident that they will be able to prove why they did what they did.

Things tend to get messier when employees misunderstand the law and trumpet that misunderstanding as if it were a legal right. In practice now, this happens most often with claims of a "hostile environment." An employer can face liability for a hostile work environment if an employee is harassed as a consequence of his or her membership in a protected class. So, for example, a woman has a hostile environment claim if she is a victim of sex harassment (and the harassing conduct is both objectively and subjectively offensive as well as severe or pervasive).

Again, the concept doesn't seem that complicated. The work environment only violates the anti-discrimination laws if it is corrupted by hostility targeted against someone (or a group of someones) because of their membership in one of the protected categories. Title VII does not, as the Supreme Court consistently notes, create a code of conduct for the workplace. Harris v. Forklift Systems.

But -- employees (and some employers) think it does. Too many employees claim that a demanding or insulting supervisor has created a hostile environment by treating them badly. Because it makes linguistic sense, the idea sometimes has traction with employers. Recent attention to workplace bullying has magnified the problem. As a consequence, employers with a human resources problem (a difficult supervisor) may mistakenly believe they have a serious legal problem (a "hostile environment"). Indeed, calls to employer's counsel sometimes start with the premise that the anti-discrimination laws have made incivility illegal. They have not done so.

The anti-discrimination laws have powerfully changed the workplace, but they have done so in a narrow and important way. It is unlawful to discriminate against an employee on the basis of his or her membership in a protected class. Moreover, harassment (in the form of the creation of a hostile environment) is a type of discrimination. These are serious laws, but they have limited scope. They make it unlawful to discriminate. Other than that, they do not in any way limit the principle of employment at will or require a level of civility in professional interactions. While civility between supervisors and employees may be good for business (and even right in an aspirational sense), it is not legally-mandated.

Employers would do well to remind themselves both of the power of the law and the limits of its scope. And to not listen to employees whose understanding is based on what they think the law must be. A proper understanding of scope and context can go a long way to minimizing workplace problems and consequential litigation.

Related topics: Employment, Retail