At-will employment: A loophole in the discrimination laws?

Great Debates
1

I live in Nevada, which is a right-to-work state. The idea seems like a noble one- supposedly a company cannot require union membership as a condition of employment.Right to work also includes at-will employment.

In practice, it means that a company can fire an employee for any reason, or no reason.

Lately it has occurred to me that companies can use the at-will employment laws to get around anti-discrimination laws. It works something like this. Company X doesn’t like to hire blacks, Jews, whatever, or doesn’t think women should be doing a particular job, regardless of ability. But they know they can’t get away with not hiring disfavored minorities.

So, they go ahead and hire on a token basis, keep the employee around for a month or two or three, then say, “Sorry Jim, Chiam, Thea, you’re not working out/not meeting the standards/whatever the company jargon is for, you’re a good worker, but we don’t want your kind here.”

Of course, they would have to keep a couple of women/minorities on a long term basis to show the EEOC if a lawsuit ensued, but of course they would have to be hard-core company suck-ups.

But at will employment means that the company doesn’t have to demonstrate any misconduct or poor performance on the employees part, or that the company gave the employee notice that improvement was needed.

It also means that a good worker might have a hard time finding a job when an application/resume shows a couple of jobs in the recent past that only lasted a couple of months.

Which means that a high percentage of minorities or women can quickly become unemployable due to prejudice on the part of past employers.

2

Hmmm . . . And I thought this was going to be a thread about why Lionel Atwill doesn’t make more movies. I was going to point out that he died in 1946.

“Never mind!”

3

IRL - the claim of illegal discrimination in the work place is difficult to prove in any circumstances.

A friend and coworker of mine used to work for my states’ Civil Rights Division, and he was sent out to investigate claims all the time.

The problem usually was while the person fired may have been in a protected class, it is not always a clear line to believe that the sole reason for hiring or firing was the status of that person.

** Generally ** speaking, it was not usually a single individual’s circumstances that would prove or disprove an allegation of illegal discrimination. But if there was a pattern that appeared that although many minorities would be hired, for example, they all seemed to be found unsuitable after working 30 days, well, that might go a ways to prove the case.
We, too are an At will employment state. I have fired people, without describing to THEM exactly why. I believe, especially in the one case, he knew very well why. When he filed for unemployment compensation a few months later, I filled out THAT form truthfully and indicated a reason. He was denied the claim.

4

Wring is wright (heh-heh. Good discrimination lawyers will comb a company’s personnel records looking for a pattern. VERY good discrimination lawyers will be up front with you if there isn’t one.

And if there is a pattern, being in a right-to-work state or having an employment-at-will clause won’t help the company.

5

A company that was consistently hiring then firing minorities, even if they kept a few “token” minorities, would probably find themselves in trouble. The reality is that, the threat of lawsuits are always an issue with a company.

Where I work, several people in protected classes have threatened to sue for being discharged even though we have many long-term minority employees. What often happens is a small settlement is reached in order to save from having to defend a lawsuit which would be more expensive and embarrassing.

The other factor is the inefficiency of concocting a scheme to hire a few long-term “token” minorities and then cycle through a bunch of other minorities that you can fire. Training costs, even for a relatively low-tech job, are expensive. Companies always need to look at the bottom line. The expense of retraining and the threat of suits is too big of a liability for most companies. There can, of course, be companies who try this and might be successful. But most companies don’t want to deal with setting up a complex discrimination scheme. Not to mention that a track record of dozens of minorities hired for a few months would make defending a lawsuit that much harder.

6

Anyone who honestly thinks that a corporation sits around figuring out ways to fire minorities needs a lesson in reality. The example given, where minorities are hired, kept on for a few months and let go, I will assume to mean that they spent little money or time in the hiring process or in training. However, the company now suffers bad unemployment insurance experience ratings, which costs money. The company has to have someone watching the ‘stupid’ minorities it hired while they sit around and do little to nothing for a couple of months. All so they don’t look biased.

I grant you that there probably is more discrimination in other areas of the country than here in the northeast, but I seriously doubt that any company, assumably with more than 50 employees, is sitting around figuring out ways to f— the minorities. If they were really that strongly against them, they could just hire a bunch of minorities to do janitorial duties, enough to make any non-biased hiring representations that they needed to make.

Fifty years ago, I can see that as a consideration, but I sincerely hope the rest of this country has come around at least that much and I’m not completely naive here in my beliefs.

7

Actually, JustAnotherGuy, the reason I bring the subject up is because I recently lost a job after less than a month, and I am firmly convinced that the reason is because there was a male clique in the casino that didn’t approve of female craps dealers.

I was let go without being told that my performance was unsatisfactory, in violation of the company’s own policy. (I asked a H.R. rep, and she confirmed that even if an employee was still in the probationary period, it was standard procedure to let them know so that they could have an opportunity to improve.)

I dealt the game adequately, (better than some of my male co-workers who had been there longer), complied with company policies and procedures, was cooperative with my co-workers, despite the fact that they were distinctly uncooperative with me, followed the directives of my supervisors (I observed male dealers talking back and arguing with supervisors on more than on occasion without so much as a reprimand) and gave polite, friendly service to the players, even stopping to chat with them on my breaks if they had abandoned the craps table in favor of a slot machine. I observed my male co-workers getting downright rude with players.

It took two calls to H.R. to get the information that some of the supervisors felt that I had a “negative attitude”, I found this a bit strange because at my previous job, I received many comments from both supervisors and players about my upbeat, friendly personality. In fact, I had been transferred to blackjack, and one of the dice floormen said he wanted me back, the dice pit was no fun without me. So much for negative attitude. Also, at least one supervisor had falsely claimed that I would “get upset” when corrected or given constructive criticism. But he was unable to point out anything I had done or said to indicate that I was upset. Also, it was claimed that I had been sarcastic with other dealers. This was based on a single good-natured comment to another dealer, which was considerably milder than the type of “sarcastic comments” dealers would make to each other that were part of the accepted culture of the casino. It was definitely not the type of thing that would normally be documented unless a supervisor was looking for an excuse to get rid of a good employee.

Also, I was the only female craps dealer on the shift, one of two in the entire casino.

I’ve also noticed that they seem to turn over female dice dealers pretty quickly- either the boys give them such a hard time that they quit, or some piss-poor excuse is found to fire them.

Right now, I’m working in another casino, I’m the only female dice dealer in the entire joint (except for a temp that I don’t see very often) and I get along extremely well with my male co-workers. They don’t seem to mind having a girl dealer on the crew at all, especially since a player who was known for stroking the dealers and not tipping has started tipping heavily since I started work there…

8

If I remember correctly, the Denny’s chain of restaurants lost a fairly well publicized battle about discrimination. I think it pertained more to their treatment of patrons, but it was policy in their restaurant to treat blacks badly. Is it possible that you live in an area that is pretty much one type of population, so that you haven’t had much experience with this sort of thing?

[By the way, I noticed in another thread that you were wondering how to do quotes. If you click on vB codes under The Straight Dope title, it is very well explained; that’s how I learned.]

9

Not if the worker is fired “for cause”. Cause is fairly easy to trump up. All you have to do is document mildly annoying things that the average human being does on a daily basis that nobody would think twice about if you weren’t looking for an excuse to get rid of them.

Are you implying that minority workers are lazy and don’t do their jobs?

Not fuck them, but avoid having them work for you. Also, if it could be demonstrated that a company only hired minorities for janitorial work, and not as, oh, say, executives or craps dealers, you would definitly have a case for discrimination.

Fifty years ago, I can see that as a consideration, but I sincerely hope the rest of this country has come around at least that much and I’m not completely naive here in my beliefs.
[/QUOTE]

It hasn’t, and you are.

10

Ya know, I don’t understand why there are any laws requiring a busisness to hire anyone. The government has no right to tell company X that they must have a certian number of blacks, women, ect. It makes good busisness sense to hire anyone who is qualifed for the job, but if I don’t want to, why am I required to do so?

11

**

You can quit any time you want for any reason or no reason. I don’t see a problem here.

**

That sounds like a lot of bull to me. It costs quite a bit of money to hire someone and train them. Most companies would rather have employess sticking around as revolving doors cost productivity.

**

Just like you don’t need to give them notice that you want things to improve. At any given moment you can jump ship.

**

If someone has a history of moving from job to job every few months it is probably their fault.

More likely it happens to people who are late, aren’t productive, or nobody likes.

Marc

12

MGibson-

Well, the company has the advantage here, because if they fire you, you have to hit the pavement looking for another job, and forget unemployment, because the unemployment office will look and see that you voluntarily quit the job where you had worked for a couple of years, did a good job and were liked by your supervisors and co-workers to take the job where they canned your ass after a month. It’s extremely difficult to convince them to let you file the claim against the employer that fired you. You then have to either fudge on your resume and explain why you quit one job without having another lined up, or be truthful and explain why you were terminated after a month. Few employees will just up and quit unless they already have another job lined up.(I usually put “laid off” on applications and leave it at that. I did my job well, and there was no misconduct, and I hadn’t even completed the probationary period.)

The employer, on the other hand, can just hire the next live body that fills out an application, and believe me, there are a lot of people in this town who are out of work and looking for jobs. And with most companies, outside of orientation, there is minimal training. You are expected to hit the ground running.

Also, many companies here in Vegas do everything they can to discourage long-term employment. Long term employees are expensive because they earn higher salaries commensurate with their experience, and are more expensive in terms of benefits such as retirement packages, health care (older employees use their benefits more) and paid vacation time. So companies frequently fire them or simply make their lives so miserable that they seek employment elsewhere and hire someone else at lower pay who hasn’t accumulated vacation time. They have weighed the cost of giving higher pay and benefits to the long term workers against the problems and costs associated with high turnover
of workers who receive lower pay and minimal benefits, and opted for the turnover.

Oh, and I wasn’t late, was productive, and the only people who didn’t like me were the ones who flat out thought a woman has no place dealing a “man’s game” like craps, and these people were either long-term employees or people in supervisory positions.I’m sure there are plenty of women and minorities out there in othere lines of work who have had experiences similar to mine.

13

>> The employer, on the other hand, can just hire the next live body that fills out an application

I think they would rather keep who they already have unless they have a good reason to look for somebody else. Turnover is very expensive.

Yes, they can fire you for any reason or no reason. You were without a job and they offered you a job, it was not a marriage proposal (and even if it was there is divorce you know). Now you are back where you were.

At any rate, I can’t see why employers should have to justify why they let you go. It is their job to run the place as best they see fit and according to their own discretion. If you want to run the show you should start your own business.

Being fired is not such a big deal and should not be taken personally. Just move on with your life. Why would you want to work for someone who doesn’t want you?

MGibson has pretty much nailed it.

14

**

If they fire you why will the unemployment office think you went willingly?

**

Most people fired after only a month probably deserved it. No I’m not saying that’s the way it was in your particular case. However I’ve seen people who needed to be fired stay on the job for months at a time.

**

No, but there are plenty who will goof off at work, come in late, and just do an all around bad job.

**

Which ends up costing the company more money and a loss of production. Whenever my area was short of employees it ended up looking bad for the managers. Less employees means less productivity which puts their jobs in danger.

**

Colorado Springs used to be the same way. I imagine it’ll change but since Vegas is still growing the ball is in their court. Here in Dallas, depending on occupation, they’re doing all they can to hire qualified people.

I’m sure there are. I’m also sure that there are plenty who are lazy, late, non productive, rude, and sloppy. I don’t know your work habits so I can’t comment on you in specific. But it is possible that for whatever reason they simply didn’t like you. Stinks but I’ve had that happen to me before and I thought the job was going great.

Marc

15

I won’t claim to know how things are in Nevada. But let me tell you how things are here in Sue-Happy California. In my employment agreement with my current company, it states that I am an At-Will employee, that either of us are free to end the working relationship at any time. But this is hogwash.
My company, and many like it, are absolutely paranoid about being sued. They have kept employees that deserved firing in place for as long as they could possibly stand it. And when they do fire someone, they have a long paper trail of offenses on them, in triplicate, and sometimes on video.
They do this because a) being sued for unfair firing is bad for business, especially if their are possible racial or sexual aspects. And b) if often costs more to fight a bogus charge than to settle it. And then you still have to go through the expensive process of recruiting and training new help.
Lay-offs, though, are another matter entirely.

16

Read before you post, M, and quote in context. When you fill out an application for unemployment, nobody actually looks at it. They have records that they update quarterly. They don’t care about the job history you give them. If you quit a job to take another, and lose the new job in a month, the unemployment office looks at their records, sees that you quit the last job that they have you listed as working at, and base the decision to pay or not to pay unemployment compensation on that, and if you quit, they don’t pay. In some states, Indiana among them, they send a form telling you that their records show that you quit your last job, and ask for an explanation. If you tell them that you quit to take another job, and were fired from the new job, they’ll pay.

It’s not so easy in Nevada.

17

Oh, and spooje, you state that an employer shouldn’t have to have a reason for firing someone.

What I want to know is why an employer would fire someone who does their job well, follows the company’s rules, is respectful to their supervisors and polite and friendly to the customers for “not meeting the standards of service”, but will keep people who argue with the supervisors, break the rules and are downright rude to the customers.

If you can answer that, and make a case that discrimination is not involved, I’ll agree with you. But I’ll say it again. The company has the worker at a disadvantage. There are usually enough people standing in line to fill in applications that a worker can be replaced often within hours. It may take weeks, or even months for the worker to find another job that will pay the rent and utilities, by food, clothes and school supplies for the kids…

18

Okay, look, ya got fired. Its not fair, its not right, but if you were doing such a good job and they fired you anyways, its the company’s loss. Go out, find another job, do well. Be sure to tell your friends, family, and anyone who will listen to not go to your former place of employment, but it is their busisness. If they want to fire you, tough shit.

19

Found a job, doing quite well, thank you. Been there all of a week, get along great with the boys (being the only girl in the pit is great if the male dealers don’t have a problem with having woman on the crew).

I’m already becoming the dealer they call upon to take out one of the less experienced dealers when the action gets too heavy to handle.

The OP was basically a question of whether companies like the one that was so eager to get rid of me find at-will employment a useful way of getting around discrimination laws. I still think they do.

Meantime, I’m having a wonderful time at my new job where my skills and friendly personality are appreciated.