"At Will"

Except in situations where an employee and employer execute an employment contract or a collective bargaining contract is in place or employees are employed by government with civil service protections, most employees in the United States are employed “at will”, a legal doctrine that has existed for most of our national history. In fact, without legislation or other governmental intervention every state except Montana follows this principle. The National Council of State Legislatures describes the concept as follows:

At-will means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability.  Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.

At-will also means that an employer can change the terms of the employment relationship with no notice and no consequences.  For example, an employer can alter wages, terminate benefits, or reduce paid time off.  In its unadulterated form, the U.S. at-will rule leaves employees vulnerable to arbitrary and sudden dismissal, a limited or on-call work schedule depending on the employer’s needs, and unannounced cuts in pay and benefits.  Source: National Conference of State Legislatures, The At-Will Presumptions and Exceptions to the Rule.

Notwithstanding the fact that at-will is still the fundamental rule governing employment law, it has been transformed by federal, state and local laws that prohibit certain discriminatory practices. In this context we should remember that U.S. history is replete with examples of outright discrimination in labor markets.

• The surge of Irish immigration after the great famine of the 1840’s caused many employers in the large cities of the Northeast to post signs in business windows stating that “Irish need not apply”.
• Many employers for the first two centuries of our republic were comfortable (and legally protected) when they created “men’s” work and “women’s” work. Many of us can remember when a nurse was virtually always a woman and a taxi driver almost always a man. Some can remember the first time they heard a male telephone operator’s voice.
• And not many decades ago “manager” was synonymous with “male”. There were of course exceptions, but they were so few in number they represented the proverbial “exceptions that prove the rule”.
• The role that labor market discrimination played in the lives of African Americans and other people of color is so well documented that few of us believe it hasn’t been a significant practice even after emancipation and the passage of the 13^th Amendment to the U.S. constitution outlawing slavery.

The most important legal attack on such discriminatory practices occurred when the U.S. Congress passed Title VII as part of the Civil Rights Act of 1964. That statute reads in part as follows:

It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

The provisions with respect to these five “protected groups” have been expanded to include other categories: e.g., age, disability, sexual orientation. With respect to sexual orientation, the federal government has not created legislation protecting LGBT (lesbian, gay, bisexual, and transgender) groups, but many state and local jurisdictions have protections of this sort.  Workplace Fairness website has more information on Sexual Orientation Discrimination. 

Are employers never permitted to discriminate? In this regard consider the concept of the Bona Fide Occupational Qualification (BFOQ).

Title VII permits you to discriminate on the basis of "religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." (Note: A BFOQ can never be used to defend against discrimination based on race or color.) Source: Cornell University Law School, Legal Information Institute

BFOQs are applied very narrowly. Can you imagine what situations might justify such an exception? Complete the following poll (ungraded!) and see if you can identify which of the four examples have been established as justifiable under the law.