May we fire employee who doesn’t fit in?

Q I own a small software development company that has been phenomenally successful in the few short years we have been in business. I attribute our success in large measure to our employees, who are very tight-knit and cohesive. Nine of our 10 current employees are Anglo males between 35 and 43 years of age, and they obtained computer science degrees from the same university. The other employee is a Hispanic female who earned a computer science degree from a university on the East Coast. She has worked for us for only about six months. While she is pleasant and well educated and has demonstrated that she is capable of doing the work, she has not been able to form the same bond with other employees. She works well by herself but seems unable to develop collaborative relationships with coworkers, which I have identified as the reason for our success. I just don’t think she fits into our office culture. Can I lawfully terminate her for that reason? 

A Clearly, you are free to terminate the employee because she doesn’t “fit in.” However, you must consider not only the actual reason for the termination but also what could appear to be the real reason for firing the employee. While you insist that your reason for terminating the employee is because she doesn’t “fit in,” you must still consider the possibility that your reason may not be perceived as plausible by third parties. Outside parties could focus on the fact that the employee is your only female worker or that she is Hispanic, two characteristics that are protected from discrimination by Title VII of the Civil Rights of 1964 and the state discrimination laws.

If you terminate the employee and she files a charge with either the Equal Employment Opportunity Commission (EEOC), you will have the burden of articulating a legitimate nondiscriminatory reason for the discharge—i.e., she doesn’t “fit in.” Frankly, based on what you say, if you terminate her at this time because she doesn’t “fit in,” you may have a long row to hoe in demonstrating that your real reason for firing her is nondiscriminatory.

Before giving you a final answer on the propriety of terminating the employee, I would want to know your company’s history regarding the treatment of employees in the past. Have you let other employees go for not “fitting in”? In your company’s short history, how many employees have you had, and how many have you terminated? What is the gender and ethnicity of each terminated employee? Have there been other employees who initially did not “fit in” but came around after a period of time? If so, what is the gender and ethnicity of those employees? Of course, if you treated other employees differently because they did not “fit in” and they ultimately adapted to your culture and became good workers, you unquestionably have a duty to at least give the current employee the same opportunity.

To protect your company from a charge of discrimination, adopt measures to demonstrate that your asserted reason for termination is indeed the reason for the action. Talk with the employee, and give her a chance before terminating her. Share your concerns about her apparent inability to “fit in,” and articulate why it is so important that she do so if she is going to become a contributing member of your creative group. You should afford her an opportunity to succeed before taking adverse action, particularly if you have no history of terminating employees for not “fitting in.”

Make sure that your communications with the employee concerning her perceived deficiencies are well documented and that the termination is consistent with your prior actions regarding other employees. Consistency and thorough documentation of the employee’s path to termination are paramount in ensuring you can carry your burden of proving your motivations were legal and that you did everything reasonably possible to provide her an opportunity to succeed in your workplace.

Bottom line

It is important to remember that the right to terminate an at-will employee (so long as the reason is not discriminatory) does not carry with it the right to be arbitrary in your decision-making process. By offering the employee every opportunity to succeed, you will reduce the possibility that a court or jury will conclude that your asserted reason for the termination is an attempt to mask conscious or subconscious bias. The bottom line is, your asserted reason for the termination needs to be not only nondiscriminatory, but also believable.

Robert P. Tinnin, Jr. is a partner in Tinnin Law Firm, A Professional Corporation in Albuquerque, New Mexico. He may be contacted at rtinnin@tinninlawfirm.com.