At-will status won’t stop bias lawsuit — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

At-will status won’t stop bias lawsuit

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in Discrimination and Harassment,Human Resources

It doesn’t take much for an employee who has been terminated to take a discrimination claim to court. For example, all a woman has to allege is that she is a member of a protected class (female), was qualified for her job, was discharged and was replaced by someone who is not a member of her protected class—that is, that a man replaced her.

It’s then up to the employer to prove it had a legitimate, unrelated reason for the termination. It can’t rely strictly on her status as at-will.

Recent case: Diane started work as a pharmacy technician on Feb. 28 and was to serve a 90-day probationary period. She was told she was an at-will employee who could be terminated for any reason or no reason. She was qualified for the job and worked 30 hours per week until March 21, when she went on a vacation her new employer had agreed she could take when she was hired.

Diane quit another part-time job around the same time because the pharmacy had promised her full-time work when she returned from vacation. However, on March 28, just 30 days after hire, her employer telephoned and told her she was being discharged for alleged scheduling problems. The employer then hired a man to replace Diane.

Diane sued, alleging sex discrimination.

The employer argued it could have fired her for any reason during probation and that she shouldn’t be able to claim sex discrimination based solely on the replacement worker’s sex. It wanted the court to tell her she had to show the male was less qualified.

The court said her lawsuit could go forward based on her simple allegation she was a qualified woman and a man replaced her. It said at-will status is no defense. (Finn v. Porter’s Pharmacy, No. 15-651, WD PA, 2015)

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