Posted on / Updated on / in Blog & Employment At Will & Employment Policies /

One has to think that this was the question that was going through General Manager Jerry Robert’s mind before he fired one of his top salespeople, John Stone, for wearing a Green Bay Packers tie to work, a Chicago area car dealership.

A friend broke this story to me just a couple of days ago. He was outraged! “They can’t do that! That’s illegal,” he said.

I myself couldn’t understand why he was so upset, considering he is a Pittsburgh Steelers fan and doesn’t even have a dog in that fight.

In all seriousness though, as unfair as this scenario sounds, folks in the world of HR can’t look at this in such simplistic terms. We have a lot of questions to ask to determine whether or not this firing was appropriate.

So instead of jumping to conclusions, let’s take a look at this scenario and the factors that need to be considered to determine whether or not this firing was appropriate.

Employment–At-Will

The first thing we need to look at is if Illinois is an employment-at-will state.  Employment-At-Will means that the employment relationship can be terminated by either party, employee or employer, for any reason – a good reason, a bad reason, or no reason – but not a prohibited reason.

In Illinois, like many states, employees are presumed to be “at will,” and the employment relationship is at-will unless there is a defined duration for an employment contract or if a contract permits termination by the employer only under specified circumstances.

Mr. Stone’s boss, Jerry Roberts, was on the record as saying that Stone was a good salesman and no customers complained about the tie, but the dealership has done promotions involving the Chicago Bears in the past and he was afraid the tie would alienate the team’s fans and make it harder to sell cars.

This could very well be considered a good reason from the dealership’s perspective and a bad reason from the employee’s perspective, but it’s not a prohibited reason under Illinois state law.

Case closed? Not just yet.

Express or Implied Contractual Restrictions on Terminations

Illinois law also states that employees who work under an employment contract can only be terminated for reasons specified in the contract. We would next need to find out if Mr. Stone had an employment contract with the dealership and if it prohibited his termination under certain circumstances.

In the absence of an employment contract, we would be free and clear, right?  Not necessarily, as courts have found statements made by the employer promising long term employment, such as “If you do a good job you can retire from this company” can create an implied contract.  If the company’s employee handbook contains language that employees can only be terminated “for cause,” that also could create a contractual restriction on termination.

The plot thickens.

Federal and State Laws Prohibiting Employment Discrimination

When the boss told Mr. Stone he was fired, what would happen if Mr. Stone alleged that he felt it wasn’t really the tie that caused his termination? What if he alleged that he had been subject to ethnic jokes throughout his employment by both his boss and coworkers and feels that his national origin was the reason for the termination?

Although he could potentially have a tough legal battle to prove that the tie was a pretext for discrimination, there are many federal and state laws that protect employees from adverse employment action of the basis of their race, national origin, color, religion, sex, disability, age, and the list goes on.

Other Statutes That Prohibit Discrimination

We would also need to consider if there are any others statutes that may prohibit termination such as the common law of retaliatory discharge, where Mr. Stone could allege that he was retaliated against because of uncovering an unethical or illegal practice.

Are we there yet? Not quite.

Tort Law

To add to our list, there are a variety of torts that could make termination illegal. Mr. Stone alleged that his boss told him to “Take your tie off or you’re f-ing fired!”  Could he claim the tort of Intentional Infliction of Emotional Distress?

Since his boss talked to the press about his firing, could he raise tort claims of Invasion of Privacy or Defamation of Character? I am no lawyer, but these are other issues that frequently come up in employment law cases where an employee is alleging wrongful termination.

Without knowing ALL of the facts, it is difficult to call this play one way or the other, but I can tell you this.

There are many things to consider before lowering the “boom” on one of your employees.  Here are some helpful hints to help you make the tough decisions:

What to Do When You’re About to Fire Someone

  1. Don’t act out of anger or on a whim. Terminations require careful consideration regardless of the situation.
  2. Review your termination policies and procedures and make sure you have followed them to the letter.
  3. Review the personnel file. Does your documentation support the decision you are planning to make?
  4. Has the employee asserted any rights under state or federal law? If so, it doesn’t mean you can’t terminate. It simply requires that you be extra careful to make sure your documentation is in line and every “I” is dotted and every “T” crossed.
  5. Review your decision with Human Resources before taking action. Human Resources can be your ally, help you to see the big picture, and ensure consistency in policy application company-wide.

What do you think? Was the firing of John Stone for wearing a Green Bay Packers tie justified? Let’s hear your perspective in the comments box below.

This article was written by Mitzi Root, PHR

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about the author: Amy Letke

Amy Newbanks Letke, SPHR, GPHR, is the Founder of Integrity HR, Inc. Amy provides workplace solutions to improve performance, reduce liability and increase profits. She is passionate about helping other entrepreneurs and business owners achieve success.