Labor laws Featured

12:03pm EDT September 21, 2006
Has this ever happened at your company? A worker is consistently late to work or altogether absent, yet nothing is ever said. However, the day another worker’s car doesn’t start and he or she walks through the doors 10 minutes late, the supervisor reads that person the Riot Act.

Fair? Hardly. Illegal? Perhaps.

“One of the major areas that restrict the employer is discrimination,” says Mary Li Creasy, a partner at Shumaker, Loop & Kendrick LLP. “However, just because an employee is treated differently than a co-worker doesn’t mean he or she has a claim or cause for action.”

Smart Business talked to Creasy about what defines discrimination, what can be done to stop it, and what to do when it occurs.

Who is most at risk to be a victim of discrimination?
Florida is a traditional employment at-will state. Florida employers that are not operating pursuant to a collective bargaining agreement, are not government employers, or do not have an individual employment agreement for a specific period with an employee, are free to terminate or discipline that employee for little or no reason at all, as long as they don’t violate any state or federal laws.

There are local, state and federal regulations that specify what types of characteristics are protected. They include race, sex, religion, color, national origin and disability. In the state of Florida, marital status is also protected, and some municipalities protect individuals on the basis of sexual preference.

However, if an employee thinks that he or she has a claim or cause of action on the basis that his or her boss simply doesn’t like him or her, or likes a co-worker better, or there’s a clash of personalities, there can’t be a claim. Unless an individual can demonstrate that one of the protected characteristics is the motivating factor in the employment decision, there can be no claim or cause of action if that individual is an at-will employee.

From a managerial standpoint, it wouldn’t make sense for an employer to let an employee go without a valid reason. Presumably, the employer has an investment in every employee it brings into the organization. It takes time and money to determine the job qualifications, run the ad, go through the interview stage, make an offer, bring someone in and train him or her. Even though an employer can terminate an at-will employee at any time, from a business standpoint, that’s not good business sense.

Can an at-will employee appeal an employer’s decision?
If an at-will employee challenges an employment decision on a basis of one of those protected characteristics, the employer’s burden will be to articulate a legitimate, nondiscriminatory reason — also known as “cause” — for the adverse personnel action. So, even though the law says you can let an at-will employee go at any time for any reason, if the employer is challenged on the basis of discrimination, a judge or jury is likely to ask it to provide a business justification.

Going back to those protected characteristics, it’s both genders, all races, all national origins and all colors. It’s not just one certain type of individual. It works and applies to all levels of decision making. Some employers think that they won’t be challenged with a potential termination suit unless a termination was involved.

How long has discrimination in the workplace been against the law?
Title VII of the Civil Rights Act of 1964 was the first major piece of federal legislation that prohibited discrimination in employment. The act says that employers can’t discriminate or treat people differently in the terms or conditions of employment, on the basis of those protected characteristics. Local ordinances and state statutes are patterned after Title VII, which affects all levels of decision making, from the first time somebody makes an inquiry about a job through possible termination and even thereafter.

How can employers protect themselves?
Employers need to be consistent in the application of their own internal policies, rules and regulations. Nothing hurts morale more than when one employee believes that a co-worker is getting an advantage, and it’s often these types of scenarios that lead to discrimination complaints. If an employer is consistent in the way it reacts to potential policy violations, that consistency will contribute to a viable defense.

Documentation is also important, as it provides a record for the future. Should there be litigation, studies have shown that juries are more inclined to believe a witness who has kept accurate records that support the actions than somebody who testifies from memory.

MARY LI CREASY is a partner at Shumaker, Loop & Kendrick LLP. Reach her at (813) 227-2340 or