Receiving a pink slip is bad enough, but what may be even more jarring is the suspicion you’re being dismissed for reasons that have nothing to do with your on-the-job performance. Despite the existence of laws prohibiting employers from firing people because of factors such as their race or gender, workplace discrimination persists. Every year, tens of thousands of complaints are filed with the Equal Employment Opportunity Commission (EEOC) alleging bias at work, including unlawful dismissal. But the real incidence of workplace discrimination may be much higher, in part because some incidents go unreported, but also because employers may be engaging in legal discrimination.
“Not all types of discrimination are protected under the federal anti-discrimination laws,” according to Workplace Fairness, an employment rights organization. While federal laws prohibit discrimination based on age, disability, race, sex, pregnancy, national origin, and even genetic information, other classes are unprotected. Depending on the circumstances, your company may be within their rights to fire you because of your appearance, sexual orientation, gender identity, things you say online, or political beliefs. That may come as a brutal shock to workers who mistakenly believe the law protects them from their employer’s biases.
How can employers get away with firing people for random reasons? Blame the “at-will” employment laws that prevail in much of the United States. In an at-will state, “an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability,” according to the National Conference of State Legislatures. As a result, businesses have broad latitude to let people go for reasons that seem to have little to do with their job performance, provided they’re not breaking other laws. Here are six kinds of legal discrimination employers are allowed to practice.
1. Political activity and beliefs
You might want to think twice before you tell everyone at work what you really think of Donald Trump. “[M]ost employees in America working for private employers do not have any legal protection against discrimination on the basis of political affiliation or activity,” Workplace Fairness explained.
In the majority of states (California and New York are the big exceptions), companies are free to hire and fire people because of their political activities. Employers are allowed to encourage employees to vote a certain way, may prohibit them from wearing or displaying political paraphernalia in the office, and can even fire you for blogging about political matters on your own time.
2. Sexual orientation
Gay marriage may be the law of the land, but firing someone because of their sexual orientation is still legal discrimination in many cases. Federal law doesn’t specifically define sexual orientation as a protected employment class, though some states and cities have laws addressing the issue. The EEOC does believe firing a person because they’re lesbian or gay is a form of sex discrimination, but courts haven’t always agreed. Now, the Trump administration says that employers are allowed to fire people for being gay.
In August 2016, a panel of judges from the U.S. Court of Appeals for the Seventh Circuit ruled that an adjunct professor at a community college in Indiana couldn’t sue the school for discrimination she said occurred because of her sexual orientation. Yet the court acknowledged “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” Inside Higher Ed reported. About 10% of lesbian, gay, and bisexual people surveyed in 2007 said they’d been fired because of their sexual orientation.
3. Gender identity
Ninety percent of transgender people have experienced discrimination or harassment in the workplace, a 2011 report found, including 26% who said they’d been fired because of their gender identity. Only 19 states have laws protecting transgender workers from discrimination, according to the National LGBTQ Task Force. The EEOC considers discriminating against someone because of their gender identity a form of sex discrimination, but courts have said it’s OK for businesses to fire transgendered workers, at least in some situations.
4. Your social media activity
When it comes to social media and your job, the First Amendment doesn’t apply. Though 41% of people surveyed by HubShout said firing someone because of a social media post was violation of their right to free speech, those people are misinformed. The First Amendment prevents the government from restricting your right to speech, but it says nothing about private employers.
If your employer finds something about your social media activity unacceptable, they may fire you, as many people have discovered. Racist comments, wildly inappropriate photos, and revealing customer information are all among the social media offenses that can get you canned if you’re not careful.
5. Your appearance
You may love your new tattoo, but your employer hates it. Worse, he can fire you because of your body art. The same goes for piercings, unusual hair color, or facial hair. You can be let go because you’re overweight, or because you’re short. People have even been fired for being too attractive.
“No comprehensive state or federal law prohibits an employer from making adverse employment decisions when an employee or prospective employee is too heavy or too thin, revealing unconventional body art, or is generally unattractive,” according to the National Law Review.
6. What you do outside of work
You may think what you do on your own time is none of your employer’s business, but that’s not exactly the case. “[I]f the reason for your termination is not illegal under the laws of your state, then yes, your employer can fire you for what you do on your own time, outside of work,” according to Workplace Fairness.
In some states, employers can fire workers for being smokers, having a second job, or dating a co-worker. Using illegal drugs (including marijuana), even if it happens away from work, can also be cause for dismissal. Sometimes, things that happened before you were even hired can cause problems, like the Texas teacher who lost her job after parents discovered she’d once posed for Playboy.