damnedif

It’s been widely reported that an employer in Florida fired fourteen otherwise fine employees for wearing the color orange. When I explain to employers that they can technically fire employees at will for any reason, including the color of clothes the employee was wearing that day (yes, I’ve really used that example many times!), I always meant it as an absurd example of the breadth of the employee-at-will standard. Apparently, this firm has a lawyer like me who likes to use absurd examples, and took it way too literally. Bad idea.

Employers really can fire employees for the color of their clothes (except in this situation, which I will get to). But what employer in their right mind would do so? Herein lies the problem. If your company is charged with discrimination, all the terminated employee has to do is articulate a “prima facie” case, which is an easy standard. If the employee is in any protected class, and then the employer replaces the terminated employee with someone not in a protected class, the prima facie case is established. Then, the employer must articulate a legitimate, non-discriminatory reason for the termination. A show of hands for those employers and their lawyers who would like to go in front of a judge and jury and explain why firing someone for wearing orange was legitimate.

In this case, the employer was a law firm. Yes, law firms can do really stupid things with respect to employment issues. It has been reported that the law firm believed that the orange suits were some sort of protest, even though the employees denied this. The employees’ explanation was that they went out together for a drink on payday. One would think that such camaraderie would be encouraged. Moreover, if the employees actually were engaged in a protest, their actions would likely have been protected as concerted activity under the National Labor Relations Act. Some courts have even held that the employer violates the NLRA when the employer fires an employee under the mistaken belief that the employee has engaged in protected concerted action, but actually has not.

There could be other situations where it would be unlawful to fire an employee for the color of their clothes. Aside from the legal implications, callously firing fourteen employees for wearing orange was a shitty thing to do. Dumb, too. Now the firm is dealing with a lot of bad press. Fired Employee Meloney McLeod, has been widely quoted as saying that she is a single mom with four kids, and “I’m out of a job just because I wore orange today.” She’s become the poster-child for how heinous the actions of the firm were.

How would you like to be an employee of that firm now? Would you be proud to work there? Would you give your all for the company, or would you be polishing your résumé and looking for the first opportunity to leave? Worse yet, how would you feel if you were a client of that firm? Would you be proud to say that they were your lawyers? Would you want them representing you in Court, knowing that jurors can and will Google the lawyers on trial? In short, this was a really dumb move that will come back to bite the employer.

If you have any questions about firing employees for wearing mauve, mustard, teal or other non-standard colors, give me a call at 617.338.7000.

By Adam P. Whitney