"Irresistible" worker fired in Iowa

[dps]

I'm broadly with Marti and Iorm on this one, I don't like 'protected classes' or 'at will' laws. In the UK we don't have 'protected classes' but 'protected characteristics' which include age, gender, beliefs, race and so on.

Not real clear what the difference between that and a "protected class" is.

Yeah, that sounds like it might be mostly a difference in terminology.

Yi said women were a protected class. In the UK gender is a protected characteristic. It's illegal to discriminate against people on the basis of their gender so it covers women, men and people undergoing gender reassignment.

Well, actually, what Yi said is a simplification.  It's against the law to discriminate on the basis of gender, because gender is a protected class.  But in practice, that generally means that it's illegal to discriminate against women, because discrimination against men is a lot less common in the first place (though as someone mentioned, the airlines were forced to start hiring stewards as well as stewardesses).

[Neil]

Yi said women were a protected class. In the UK gender is a protected characteristic. It's illegal to discriminate against people on the basis of their gender so it covers women, men and people undergoing gender reassignment.

Now that's just fucking weird.

[Ideologue]

Iowa's an at-will employment state.  He could have fired her for wearing blue. 

See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.

Fed law says they can't.  Acts under the commerce clause trump contradictory state law under the supremacy clause.  The fedgov could basically go as far as they wished, and require good cause to terminate, but they don't.  So you get forbidden reasons to terminate or refuse to hire, like being a woman or minority, but employers can just say they were fired for being gay or a Democrat.  Martinus isn't wrong that it's stupid, but it is (with the caveat that I have not read this particular opinion, so it could indeed be shit) the law.

But you get this.  It's like in Spain, where Basques are permitted to plant bombs and own machine guns, but Castellanos aren't.

[dps]

Iowa's an at-will employment state.  He could have fired her for wearing blue. 

See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.

Fed law says they can't.  Acts under the commerce clause trump contradictory state law under the supremacy clause.  The fedgov could basically go as far as they wished, and require good cause to terminate, but they don't.  So you get forbidden reasons to terminate or refuse to hire, like being a woman or minority, but employers can just say they were fired for being gay or a Democrat.  Martinus isn't wrong that it's stupid, but it is (with the caveat that I have not read this particular opinion, so it could indeed be shit) the law.

But you get this.  It's like in Spain, where Basques are permitted to plant bombs and own machine guns, but Castellanos aren't.

It's not going to make a whole lot of difference to an employer that only has a very few employees, because as you say, they can always claim some other reason for not hiring or for firing minorities, but for large employers, it does matter.  What I mean is, consider 2 stores in a community that is say, 20% African-American.  One is a mom-and-pop type operation that other than the owners only has 2 or 3 employees;  the other is a supercenter with 400 employees.  The supercenter, absent any hiring bias, would be expected to have about 80 African-American employees (20% of 400 is 80, for the math challenged among us), and if they have significantly fewer that that, it would be considered prima facie evidence of racial discrimination.  The mom-and-pop store, OTOH, wouldn't actually be statistically expected to have any African-American employees (20% of 3 still being less than 1), so the simple fact that they don't have any black employees wouldn't be sufficient evidence of racial discrimination--you'd need some other evidence to support a discrimination case.

[Siege]

The guy would be paying through his nose.

ANTISEMITE!!!!!!!1111111

[Neil]

Martinus isn't wrong

You were doing so well, but then you just had to step on your own dick, didn't you?  Do you have a fear of success?

[alfred russel]

I fail to see how this isn't found to be discrimination. 

You should study law.

You know, in the civilized world (Europe), "employment discrimination" is any unequal treatment based on traits that are outside of the scope of the work performance. We don't have the whole "protected groups" bullshit here.

This would be clearly found to constitute discrimination, because the employee is fired irrespective of her work performance, because of out-of-work characteristics.

Not to mention, the standard is more demanding when it comes to existing employees, for obvious reasons. The guy would be paying through his nose.

I'm quite amused by the Martinus posts above. "I fail to see how this isn't found to be discrimination" follows with an explanation of european law in a case he knew was in America. I also seem to remember discussing that the US has a number of at will jurisdictions on this forum.

[Ideologue]

Martinus isn't wrong

You were doing so well, but then you just had to step on your own dick, didn't you?  Do you have a fear of success?

[Alcibiades]

Martinus isn't wrong

You were doing so well, but then you just had to step on your own dick, didn't you?  Do you have a fear of success?

Have you read nothing of his life?   

[Martinus]

Iowa's an at-will employment state.  He could have fired her for wearing blue. 

See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.

Exactly.

[Martinus]

Looking around the world, the only alternative to at will laws seems to be once you hire a guy, he's yours for life.

Not really. The way it is done in Poland for example (and this is broadly similar in most of the EU, with a possible exception of the UK as they have taken exceptions to EU labor protection laws) is as follows:

- you can fire an employee for bad job performance - depending on whether he is just an underperformer or actually did something like coming to work drunk or stealing from the company, you either have to give him notice or can fire him without notice;

- you can fire an employee as a part of job restructuring (e.g. you are having mass layoffs or are liquidating his or her job position) - in this case you have to pay him special compensation.

Both are actionable, i.e. if for example you fire someone due to liquidating a job position but shortly thereafter rehire someone for, substantially, the same position, the ex-employee has a claim to either be restituted to work or get damages.

As for non-discrimination, Polish labour law says explicitly that "noone can be discriminated in employment for any reason whatsoever" (and then it goes on to mention groups such as ethnicity, race, gender, sexual orientation etc. but these are mentioned only as examples - this is not a closed list) and that the only discrimination is allowed if it is objectively justified by the nature of work performed (so e.g. churches can only hire people of their religion to be vicars etc., but e.g. cannot insist on a cleaning lady to be of their religion etc.)

[Admiral Yi]

- you can fire an employee for bad job performance -

Who gets to make the call?

[Razgovory]

- you can fire an employee for bad job performance -

Who gets to make the call?

Office horse master, though he may consult the tribes law caster.

[Josquius]

As for non-discrimination, Polish labour law says explicitly that "noone can be discriminated in employment for any reason whatsoever" (and then it goes on to mention groups such as ethnicity, race, gender, sexual orientation etc. but these are mentioned only as examples - this is not a closed list) and that the only discrimination is allowed if it is objectively justified by the nature of work performed (so e.g. churches can only hire people of their religion to be vicars etc., but e.g. cannot insist on a cleaning lady to be of their religion etc.)
[/quuote]
That sounds odd, having a no discrimination for any reason law
Concievably could someone complain that their employer is discriminating against them being a dickhead?

[stjaba]

See that's what I don't get. If he can fire her for any random thing unrelated to her performance, why isn't he allowed to fire her for being a woman as well? It doesn't make any sense.

Exactly.

It makes perfect sense. In the US generally, we want employers to have as much freedom as possible to hire or fire employees. However, we don't like discrimination. So, we make it illegal to fire people on the basis of race, gender, disability, etc. Banning discrimination is the exception to the general rule.

In practice, of course, when you can fire someone for any reason, it is easy for an employer to point out non-discriminatory reasons for termination: e.g., poor work performance. In fact, in employment discrimination cases, the law is that the employee must first show some sort of adverse impact, along with evidence of discrimination. The employer then has the burden to show a non-discriminatory justification. If the employer does produce a non-discriminatory justification, the employee can rebut it. If the employer's justification is not credible, the jury is free to reject it.