Both state and federal employment discrimination laws in New Hampshire and Massachusetts prohibit adverse employment actions against employees because of their protected classes but do not prevent such acts against employees for their misconduct, even if they are a member of protected class. Firing an employee because of his gender, race, religion, age, disability, or another protected class would be prohibited employment discrimination yet firing that same employee, who is a member of a protected class, due to his harassment of a co-employee is not illegal and in some situations may be legally required. As noted in the title of this article, being a jerk is not a protected class. Management in addressing employee misconduct should speak with employment counsel to determine when there is enough proof to show that the actions management plans to take against the employee is based upon his misconduct. An employee with a mental disability may, under certain circumstances, still be fired for misconduct that he states is related to his mental disability yet legal advice should be sought to determine how to handle the situation and whether first a reasonable accommodation is needed to be discussed or if the misconduct justifies an immediate firing. Management should analyze the source of the information it gets before taking an adverse employment action to assess its veracity to ensure that the source itself is not from someone who has a discriminatory animus. For example, if the person making the firing decision relies on the supervisor’s input as to how the employee was interacting with that supervisor or other co-workers, that person should speak with others beyond the supervisor as well as the accused employee to see if the supervisor’s view, even if that supervisor perceives it as honest himself, is not tainted through some discriminatory animus such as the supervisor does not like working with women and the accused employee is a woman. It is important in getting to the truth of the matter not to provide false protection to someone because of his protected class when his own misconduct justifies firing. Holding employees accountable to clearly define goals in their workplace can improve employee morale, since the hardworking and team-oriented employees know that the employee cannot get away with threatening comments to co-workers or spreading rumors about their personal lives merely because he is a part of a protected class.
Speaking with employment counsel also assists the decision-makers in making sure they are thinking through the right issues. For example, I found it not uncommon for employers to believe that an employee’s continuous whining to co-employees about the workplace conditions can justify firing that employee. That approach, while appearing to be a basic common sense approach to many in management, is in direct violation with the National Labor Relations Act which prohibits taking employment actions based upon concerted activities. For more information regarding that topic, see my previous blog article here.
In summary, management should not be held hostage by keeping an employee who is threatening co-employees, sabotaging work, spreading false rumors about co-employee’s personal lives, or otherwise being a “jerk” because that employee is also a member of a protected class. Employment discrimination law prohibits discrimination based upon those protected classes and does not give employees of those protected classes free reign to act badly in the workplace. That said, management should discuss their options and strategies about such an employee with employment counsel prior to taking action.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at firstname.lastname@example.org.