What Is Illegal When Firing an Employee?

While in many parts of the world, firing someone for poor performance is legal, some don’t require a reason to terminate an employee. This can give bosses, managers, and owners the impression that they can let their staff go for seemingly any reason, which isn’t true: in fact, we can talk about illegal firing.

What are illegal reasons to terminate employment? You can’t let an employee go for these reasons:

• Citizenship
• Age
• Birthplace
• Religion
• Not taking a lie detector test
• Disability
• Retaliation
• Gender
• Race
• Whistleblowing

Understanding the difference between legal and illegal firing an employee can spare your restaurant unnecessary lawsuits and the negative press that often follows.

Keep reading for more guidance on why the above reasons to fire someone are illegal.

Illegal firing: 10 Reasons You Can’t Fire an Employee

Citizenship

It doesn’t matter an employee’s citizenship history and whether they’re a naturalized citizen. If they’ve legally taken strides to make residence in your country, federal law prohibits you from firing them.

This is blatant anti-discrimination, and legal statutes in the United States would support the ex-employee if they decided to take you to court.

Age

The Age Discrimination in Employment Act of 1967 prohibits businesses from firing employees based on their age. This act protects employees 40 and up, who also cannot be discriminated against when determining who to discharge, promote, or hire.

You can’t give these employees fewer privileges than younger employees, make them subject to different conditions or terms, or compensate them differently because they’re older.

Birthplace

Just as you can’t discriminate against an employee because of a colorful citizenship, the same can’t occur if their birthplace is outside of your native country.

People leave their birthplaces all the time to start a new life for themselves, and they deserve access to the same opportunities as others, and fair treatment once they begin working.

Religion

With more than 4,000 denominations and religions, many of your employees won’t have the same religion as you (provided you’re spiritual at all). Just as you can’t refuse to hire an employee solely based on their religious beliefs, you cannot fire them for their beliefs.

Likewise, you can’t restrict or limit an employee’s benefits and compensation based on their religion. States like New Jersey and California outright prohibit religion-based employment decisions.

Not Taking a Lie Detector Test

Your employee swears up and down they didn’t break your expensive refrigerator, but a fellow server swears just as fervently that they did. You don’t want the matter to devolve into a case of “he said, she said,” so you decided to settle it with a lie detector test.

However, the accused employee refuses to take the lie detector test.

You’re shocked, and now even more convinced they’re guilty, because why else would they refuse?

Well, perhaps because lie detector tests aren’t entirely accurate. The accuracy rate is anywhere from 88 to 98 percent. While it would be incorrect to call them inaccurate, they don’t always determine who’s being honest.

Regardless of your employee’s reasons (or non-reasons) for skipping the lie detector test, you can’t fire them based on that.

Disability

In the US, the Americans with Disabilities Act or ADA prohibits employers from releasing employees who are disabled.

Disabilities are impairments that affect one mentally and/or physically. Your employee might have always had a disability, or perhaps they developed one as a result of working or in their personal lives.

Whatever the cause, you cannot necessarily terminate the employee just because they’re disabled. However, you can fire them if their disability prevents them from working efficiently.

You must give the employee every advantage before you come to that conclusion. For example, you might change the personal leave and sick leave policies, add equipment to physically make their job easier, or change their shifts or schedules.

These alterations are designed to allow the disabled employee the same chances to succeed at the job as a non-disabled employee.

You’re not legally required to change their job title or responsibilities, and you also don’t have to reduce your work standards because they’re disabled. If the employee doesn’t perform well enough based on the above changes, then proceed with the termination.   

Retaliation

If an employee has wronged you or in some other way committed an infraction, you cannot legally turn around and fire them for that.

In the US, employees are protected from retaliatory firing under the Wage and Hour Division.

The Wage and Hour Division lists specific instances of retaliation, such as participating in an ongoing dispute by the division, lodging worker rights complaints, using worker rights, and asking about rights or payments.

However, responses to other actions that would be deemed retaliatory also count.

Gender

Firing someone based on their gender is also illegal under federal law. You also can’t discriminate or harass employees according to their gender, nor can you make hiring decisions in preference of one gender over another.

Gender can include a person’s assigned gender or their status as a transgender person.

Race

You certainly cannot make hiring or firing decisions based on a person’s race under the Equal Employment Opportunity Commission. That includes preferring people of certain races or firing others explicitly for their race.

Whistleblowing

We’ve heard of famous whistleblowers across industries because they become mini celebrities and are very notorious for their actions. An employee who engages in whistleblowing reveals company secrets deemed fraudulent or dangerous.

Although whistleblowing can put a lot of scrutiny on a company, it’s still not a legal reason to fire an employee.

You CAN Fire Employees For These Reasons

Although the list of why you can’t fire an employee is vast (illegal firing), keep in mind that many more reasons are legal grounds for termination if they’re not discriminatory or retaliatory.

Here is a list.

• Misusing company tools, resources, or products: The resources and tools you provide to an employee, such as software or smartphones, are only intended to be used for work purposes. Misusing them, such as for another job or for personal use, is a valid reason to fire an employee.
• Making threats against others: Even if there is no follow-through on a threat, an employee who makes other staff and managers feel unsafe should not continue working at your establishment.
• Making false statements: Falsifying records is illegal and could end up in a court case against the employee and a firing.
• Physical violence: Even one fight shouldn’t be tolerated at your workplace. You should fire the employees involved in the altercation immediately to keep the workplace a safe environment for all your staff.
• Causing property damage: It’s one matter if it’s accidental and the employee offers to pay for the damages. However, repeat offenses, or employees who intentionally and egregiously cause property damage should be let go.
• Sexual harassment: This is another workplace behavior that’s illegal and can lead to nasty lawsuits. Sexual harassment is a form of discrimination and should never be tolerated in the workplace.
• Substance abuse: An employee can take prescribed medications, but they should not abuse their medications, nor should they imbibe illegal substances or consume alcohol when working. You might begin instituting random drug tests to ensure your employees are clean.
• Revealing trade secrets: Trade secrets are proprietary company information your competitors and the public shouldn’t be privy to. When an employee reveals those secrets, it puts your company at risk, so it’s immediate grounds for termination.
• Theft: An employee who steals can hurt your company and sets a poor precedent for acceptable employee behavior. You should nip the problem in the bud by letting the employee go.
• Insubordination: If an employee won’t follow directions and gets testy when you challenge them, you might give them a few more chances to shape up. However, if their behavior doesn’t improve, it’s best to terminate them. Their remaining at the company can hurt morale.
• Poor attendance: Work can’t get done when your employee doesn’t show up. Of course, emergencies happen, but a frequent record of tardiness suggests the employee doesn’t want to be there. You should let them go at that point.
• Bad performance: An employee who’s fully trained on your protocols should know how to follow instructions and perform to certain standards. When they underperform consistently, you might consider pulling them aside for further training. However, if they continue to underperform, it’s time to terminate them.

Illegal firing: bottom Line 

It’s illegal to fire employees for many reasons, including out of discrimination or retaliation. Letting an employee go without doing your due diligence can lead to wrongful termination lawsuits your company will likely lose, so triple-check that you’re within your legal rights before you proceed. 

Some articles you must read:

• How do you politely dismiss an employee?
• What are the rights of restaurant employees in 2024?
• How do i get fired gracefully?