A Brony got fired, causing Gawker and Reddit commenters much consternation, and, of course, counter-consternation from people talking about “protected classes” and “at will” employment and other legalish things. So what’s the final word? Is it legal to fire a middle-aged dude who loves My Little Ponies? What about Red Sox fans? People who snitch on a bad coworker? Is it legal to fire them all?
Yes. Of course, I’m a lawyer, and it’s my lawyerly duty to say “almost definitely probably yes, like 99% yes, but if you fall into the 1% of exceptions to all the laws I’m talking about here, please don’t sue me.” So, let’s go with, yes.*
Let’s break it down into federal and state laws. To be clear: throughout this post, I’ll only be talking about non-unionized, private-sector employees, which constitute the majority of people working in the US.
Federal law, for the most part, protects people from discrimination and certain kinds of retaliation. Well, you might say, isn’t hating Red Sox fans discrimination? No, it’s not discrimination, and please stop leaching all meaning out of that word by applying it to everything all willy nilly. If someone likes orange popsicles and not red ones, they are not discriminating against red popsicles. They may have discriminating tastes, but they aren’t harboring any deep seated resentment or stereotypes about red popsicles rooted in centuries of hatred and misconceptions. Disliking Red Sox fans is not discrimination. (I’d make a joke here about how it’s awesome to hate on Red Sox fans, but since the Red Sox are one of like 5 baseball teams I can name, that seems like a rather cheap shot.)
What about being a Brony? That’s about 1% more complicated than the Red Sox fan hypothetical. If the boss fired the Brony because he felt that liking Bronies made someone a sissy, or reflected an inability to take charge and be assertive–well, those all sound like stereotypes about women. Then, maybe he’d have an academic case for sex discrimination, because his boss fired him for not conforming to social stereotypes about men. I say he’d have an “academic” case for this, because, given the fact that Bronies are, by definition, adults who are fans of a sparkly children’s show about magical ponies with GIANT anime eyes, I doubt a court would find anti-Bronism gender discrimination as much as they would find it nerd discrimination, which is totally legal.
The other problem with the gender discrimination argument is that it’s not at all clear that the stereotype about people who like My Little Ponies is that they’re acting like women–do most adult women watch the show?–but rather that they’re acting like children. Thus, plenty of people have mentioned that anti-Bronism may have more to do with people sensing a slight hint of pedophilia where a grown man loves a cartoon apparently aimed at very young girls. Like anti-nerd discrimination, anti-pedo discrimination is also legal (in fact, it’s encouraged). (To be clear, I do not think Bronies are all pedophiles. Given that I’ve never met a Brony in my life, for all I know they’re all upstanding citizens who separate their recycling and feed stray cats, I have no idea.)
What about someone who snitches to the company boss about a lazy coworker? I mentioned that federal law protects against certain kinds of retaliation–wouldn’t this count? What if the lazy coworker has a really important job, like being a security guard? What if, while the guy was asleep, a burglar came in and stole all the money? And all you want to do is make sure that this horrible security guard can never be allowed to put the company at risk again? If you report this guy to your boss, you can’t seriously be fired for that, right?
Yes,* you can. Federal law, for the most part, only protects people who are retaliated against for (a) complaining about discrimination; (b) complaining about federal minimum wage / overtime violations; (c) complaining about your employer stealing government money, or engaging in certain kinds of securities fraud; (d) trying to organize a union; and (e) trying to take Family Medical leave.
There are a handful of other exceptions. But for the most part, employees are not protected for blowing the whistle on coworkers or supervisors who are, essentially, bad employees or bad people. Even if your coworker is stealing money right out of the company till, unless it involves a securities violation or a government contract, snitching on him to the boss is totally a fireable offense. Maybe the boss wants to let him steal money? Maybe he just hates snitches? Who knows. The point is, you get no protection from federal law (unless the guy is stealing so much money that it constitutes securities fraud).
What about state law?
Well, every state is different, but for the most part, states offer very few protections above and beyond those offered by federal law. If you have a contract–like a real, honest to god contract, which says you will only get fired for cause or with notice or whatever–then you may have a state breach of contract claim. If you have an employee handbook that says you absolutely should be allowed to be a Brony or a Red Sox fan, or that you should totally snitch on bad coworkers, then you might have a state claim for breach of contract or breach of implied contract, although the vast majority of employee handbooks say THIS IS NOT A CONTRACT in giant letters.
Some states and cities have anti-discrimination laws that are better than the federal ones. Federal anti-discrimination law, for example, doesn’t protect against anti-gay discrimination, but New York City law does. Similarly, New York State law limits the degree to which people can take someone’s criminal or arrest history into account when hiring them, but federal law has no such protections.
Finally, if you’re snitching on a coworker, not for sleeping on the job, but rather for allowing a nuclear reactor to go critical, then you probably have a claim in most states under a “public policy” exception to at-will employment, meaning that the public has an interest in some (very tiny) fraction of people not being fired. Namely, people who are trying to warn everyone about a potential nuclear meltdown. Similarly, if you were fired because you actively refused to do something illegal–like embezzling money or perjuring yourself–then your state may well provide some protections for you, as the public has an interest in ensuring bosses can’t coerce people into doing illegal things.
So what’s the moral of the story? You can be fired for lots and lots of things in the United States. And it’s amazing how few people understand this. Part of this has to do with an incredible PR campaign against regulation and plaintiffs lawyers (like me!) leading people to believe that there are billions upon billions of laws that make it impossible to fire people, choking the life right out of commerce.
The reality is quite the opposite. The vast majority of horrible things that employers do to employees is totally legal. Companies can fire employees for–and this is literally the phrase we use in employment law–“good reason, bad reason, or no reason at all,” as long as it’s not an illegal reason, which is essentially restricted to the stuff I listed above and a handful of other exceptions.
This can’t be true, people think, because it seems unfair. I get phone calls every day from people who are shocked that their employer’s totally unreasonable, conniving, lying, manipulative, rude, contradictory and otherwise insane behavior is totally legal. “But,” the person will say, “I’ve worked there for twenty years, and I’ve had stellar reviews.” It doesn’t matter. If, as appears to be the case with the Brony, your boss walks in one day and doesn’t like your computer wallpaper, unless you have contract, he can boot you right out the door with nothing but a COBRA letter.
The mere fact that people don’t know this about our legal system is problematic–how can you decide how you feel about employment laws in the US when you have no idea what they are? Until we all come to terms with exactly how much our legal system is stacked against employees, we won’t even be able to have a sensible public debate about it.
The other moral of the story is, of course, if you’re a card carrying Brony, either find yourself a Brony-friendly workplace or keep your Bronying (Bronifying? Bronificating?) out of the office.
*Asterisk, of course, means that if you don’t know whether your own termination was legal, you should call a lawyer, cause you might be the exception to the rules listed above. Unless you’re a Red Sox fan.
Christine Clarke is an employment lawyer at Beranbaum Menken LLP in New York City. She has published in Slate and writes an employment law blog at Wage Against the Machine. She’s a regular contributor to the LOTL blog.
