You’re Damned if You Fire Employees for Wearing Orange.

Posted: March 26, 2012 in Discrimination, Hiring and Firing

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

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Comments
  1. […] You’re Damned if You Fire Employees for Wearing Orange. (damnedif.com) […]

  2. […] Whitney at DamedIf explains why taking the at-will employment standard to the extreme (i.e. firing employees for wearing orange, or believing in the Easter Bunny) could […]

  3. Mac says:

    Even lawyers, who should know better, frequently confess to police, prosecutor, etc. when questioned about things that they may have been involved in. Many confessions are given in attempts to justify one’s own actions.

    An (only slightly) exaggerated example, from The Dilbert Principle:

    “You say: ‘Our company is skilled in many other things that are never reported by the biased media.’

    “Media reports: ‘Our company ____killed m___ other t_____ ____ ___ ___er ____e_ ___s ____a.'”

    Only slightly edited.

    Police and prosecutors are listening to you for anything you say, sentences, phrases, words, that can be used against you. They are NOT listening for anything that tends to show you to be innocent, or at least not guilty. In some cases (a recent example is still in the headlines) the prosecution will fight the defense to prevent anything that supports the defense position from being revealed to the defense.
    Even strictly limiting one’s information to accusations of another party or suspect can be prosecuted as giving false information to the police/prosecutor, even if the person sincerely believes that what he says is true.

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