The Herald Banner, Greenville, TX


July 24, 2012

Suing for possible racist termination not recommended

Ask An Attorney

In this week’s installments of “Ask an Attorney” we will discuss employment termination based on possible racism. For more detailed answers, you should consult an attorney.

For the past eight years, I worked as a home health nurse for a company in Collin County. My boss, who is also a woman, started treating me weird when I adopted a baby girl from China four years ago, and it’s gotten worse every month since then.

Last week, she fired me for “falsifying a timesheet” because I accidentally put both of my one-hour visits on Friday instead of one hour each on Thursday and Friday. I think that was a cover for the real reason — that she is a closet racist and doesn’t like that I adopted an Asian child.

When I explained what happened with the timesheet, she issued a new termination letter with a blank “reason” section. Can I sue her to get my job back? — Anonymous, Plano, Texas

Yes, you can sue, but you will probably not be successful unless you have more than your suspicion that the termination was racially-motivated.

Texas is an “at-will” employment state. That means that an employer can fire you for any reason or no reason at all. This legal doctrine allows an employer to fire an employee, or an employee to quit, without worrying about liability.

There are several exceptions to the “at-will” rule. First, this doctrine has been modified to prevent discrimination. There are several classes of people that may not be targeted because they fall into a protected category. These are race, color, disability, religion, sex, national origin or age.

That means that a business cannot fire an incompetent 90-year-old woman because she is elderly or because she is a woman. It can, however, fire her because she is incompetent or for no reason at all.

The logical question is: “Won’t employers simply lie about discrimination and say the decision was based on other factors?” That definitely does happen from time to time, but those employers usually leave a track record, or other evidence exists proving the firing was improper.

Also, federal and state agencies fine businesses for discriminatory practices, and larger companies are therefore much less likely to fire employees based on discriminatory reasons.

The “at-will” doctrine has also been modified to prevent retaliation in certain situations.  There are literally hundreds of different cases of illegal retaliation ranging from employees fired for refusing an AIDS test to those fired for “whistle-blowing” on their bosses for various illegal activities.

An employer may also not retaliate against an employee for various legal issues, like complying with a subpoena to appear in court, filing bankruptcy, or being on active duty in the military.

Furthermore, some sorts of retaliation will do more than get an employer sued or fined — they are crimes that can carry harsh prison sentences. This is especially true with respect to election-related retaliation.

In your case, the employer’s refusal to provide a reason for the termination may work in your favor. If you apply for unemployment benefits, the company may wish to object to those payments. If so, they will have to provide a reason for your termination. If they make up a reason, that can be used against them later. If they cannot provide a reason, they can also not fight your receipt of unemployment.

Because the racism you allege was not against you but against a family member, you will also probably have trouble finding an attorney to take your case unless you are willing to pay them out of pocket. If you have some evidence — like an e-mail from your boss making overtly-racial comments — that evaluation could change.

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