You’re Fired! Do Employers Have to Give a Reason for Termination?
September 30, 2015
Managers are often averse to providing a terminated employee the reason(s) for termination and may even subscribe to the notion that reasons should not be given. Why? Some simply believe they do not have to because the employment is “at-will.” They may also dread the possibility that providing the reason will invite debate from the employee during what is already a difficult situation for both parties (I think it is safe to say that most employers do not enjoy firing people). Many fear they may say something that will be used against them later if the discharged employee brings a discrimination or retaliation claim or that their explanation may “box” the employer into a position that may not provide for optimal defense against such a claim.
Under federal and Florida law, employers are not required to provide a terminated, at-will employee with a reason at the time of discharge. Just the same, the outcome of a given discriminatory discharge claim often hinges on whether the employer can articulate a “legitimate, non-discriminatory reason” for the termination. The employer does not have to “prove” its reason- it simply has to state it. However, once its states its reason, the employee has an opportunity to rebut it by showing that it is “pretextual,” i.e. it is not the real reason and was instead created to cover up unlawful discrimination. An aggrieved employee may argue that the failure to provide the reason at the time of termination is evidence of pretext particularly where the employee asked the employer for the reason but the employer refused.
This is not to say that in the absence of an explanation at the time of discharge, an employer is later foreclosed from providing a legitimate, lawful reason for termination in its defense against a claim of discrimination. Moreover, there is well-developed case law holding that courts are not to second guess the “wisdom” of an employer’s personnel decision assuming the reason proffered is “one that might motivate a reasonable employer.” Employment lawyers often exploit this case law to persuade judges to throw out discrimination and retaliation cases. Notwithstanding, cases now and then do proceed to jury trials where uncertainty lurks.
It is human nature for a terminated employee to want to know why he or she is being fired. Similarly, a jury may project that feeling on a plaintiff employee who was not provided a reason for termination or was given a reason inconsistent with that proffered at trial, causing the jury to ponder, “If that was in fact the reason, why didn’t the employer say that when it fired the employee?” The defendant employer may not like the jury’s conclusion.
Of course, there are situations where it is obvious why an employee is being fired, e.g. failure to show up for work for several days or a blatant act of workplace violence. Perhaps in such situations, the reason truly “goes without saying.” In any event, an employer should be able to reasonably articulate a lawful reason for an employee’s termination prior to the actual termination. That is when an employer should be in the best position to explain its reason. Memories fade and individuals integral to the decision may be long gone if and when the time comes for the employer to explain itself in the course of a discrimination claim. If the employer cannot accurately and clearly delineate its lawful reason prior to discharge, it might want to reconsider its decision.