What is the employment at will doctrine
*This is a transcript of the Facebook Live video from 4-26-18 Click here to watch the video.
You, see what happened was, you go back to common law and, I’m often asked what is the employment at-will doctrine. Employment at-will doctrine was a common law doctrine. Tennessee used to be a part of North Carolina. North Carolina used to be a part of Great Britain. For most states in the union we get our common law from Great Britain. I always think say lords and serfs because that’s where the employment doctrine was born. It was in the relationship between a lord and the peasants and the serfs that worked on his land. That lord could employ people, not employ people, fire people. There was no restriction on what he could do with that relationship and that has come down to us these days in the employment at-will doctrine.
So it means the employment at-will doctrine is pretty simple. Anybody can be fired at any time for any reason. And the protected categories and conduct that I talked about before, those are all exceptions to the employment at-will doctrine. So, if you feel like you’ve been treated unfairly and you want to determine whether or not you have a case against your employer, you have to look to see is there an exception to the employment at-will doctrine at work here. So that’s where you go back to look and say, all right, what’s the motive behind the reason I was fired.
I always like to ask people what was the real reason you were fired. They say they fired you because of your performance. So they say they fired you because you were late or you didn’t come to work but you may say no, that’s not the real reason because I’m African-American and there were white employees who did the same thing I did, reported to the same supervisor I reported to and they weren’t fired but I and all the other African-Americans when we do that we got fired. Or maybe it’s because of your sex. All the women in the office, if they engage in certain conduct then they were fired but the men weren’t fired, or my supervisor made it clear or the decision maker made it very clear that he or she had a prejudice or a bias against certain kinds of folks and that sort of thing.
So you’ve always got to tie it back. There always has to be a causal connection between your inclusion in the protected class and the adverse employment action, which is usually when people come see me is usually termination. But reassignments, promotions, suspensions, write ups, those are also adverse employment actions and can give rise to liability if there’s a discriminatory intent.