Everyone knows it is illegal to fire an employee for a reason that is protected by the federal Civil Rights Act of 1964, the NJ Law Against Discrimination, and all protected categories that have been added since. However, some employees may not be aware that there are certain types of discrimination that are still legal in many areas of the United States, and employees are not always protected from being fired for one of these legal reasons.

Physical appearances

An employee is not protected from being fired for looking a certain way, such as sporting too many tattoos or having a strange hair color. In addition, an employee can be fired for dressing in a manner that is inconsistent with the office dress code. While it is currently legal to fire an employee for being overweight in most jurisdictions, that is an area that could see some legal protection in the near term.  Unless the employee’s weight creates a safety issue or makes it impossible for the employee to do his/her job, being overweight could be a protected disability, entitled to legal protection.

On the dress code issue, an employee’s legal claim could prevail if s/he proves that a dress code was intended to discriminate against a religious minority or was a pretext for the employer’s racial bias. However, absent those proofs, an employer has a right to lawfully discriminate on the basis of dress code.

Political beliefs

Political affiliation and political activity are not protected in many states. While labor union activity is protected, an employee can be fired for spouting unpopular political views that contribute to a hostile work environment. A government worker is protected by the first amendment.  Not so a private employee.

Use of social media

Contrary to the practices of some high-profile political figures, some employers do not look favorably on incendiary Tweets, racy Instagram shots, or provocative Facebook posts. An employee can be fired for posting content on the Internet that is not consistent with the company’s messaging, even if done on his or her “own” time, rather than at work.  See next illustration for reasons.

Activities outside of work

Most people believe their employer has no claim on their activities outside of work, but that is simply not the case. An employee can be fired for engaging in activities outside of the workplace that the employer finds unsavory, inappropriate, or otherwise an interference with or downright harm to the reputation of the company.

Sexual identity or orientation

Perhaps the most surprising examples of legal discrimination nationally are LGBTQ lack of protections. While it is illegal to discriminate based on gender, many states have not adopted laws banning discrimination based on gender identity or orientation. In fact, a large number of gay, lesbian, and transgender employees have been fired for overtly anti-LBGTQ reasons.  New Jersey protects sexual orientation and gender identity from employment discrimination.

Federal law, surprisingly for some, does not.  The U.S. EEOC has taken the position that LGBTQ discrimination is gender based, yet many federal district judges have rejected its analysis.

At Will Employment Status Doesn’t Help

Employment “at-will” status makes it easier for employers to terminate employees for reasons other than job performance (which is why Unions can be helpful in these fights). In some cases, a wrongfully terminated employee might fight the decision, win, and draw attention to a discriminatory practice.  It is important to have both the law and the facts on your side, to have a fighting chance.

Conclusion

If you are experiencing unfair or discriminatory practices in your work environment, promptly call our offices.  We are employment law attorneys for workers. At the law offices of Hanan M. Isaacs, P.C., we offer you compassionate counsel and tough advocacy.  Call 609-683-7400 or contact us online to make a near-term reduced fee initial consultation in our Central Jersey offices in Kingston.  We will listen to your facts, explain the law, and suggest pathways to civil and economic justice that are just right for you.  Call today.  You will be glad you did.