Can You Be Fired For Non-Work (Mis)Conduct?

One doesn’t have to go very far into the Interwebs to find stories, often accompanied by video(s), of people behaving badly. Recent examples include a lawyer’s racist tirade at a midtown deli, and a woman’s racist outburst on a NYC subway train. If – and, let’s face it, when – their employer(s)^[1]As always, unless otherwise noted this discussion is limited to the law of New York. learn about what happened, can they legally fire them for it?

In New York, the answer is that it depends on, for example, (1) whether the employee is an “at will” employee, or whether they have an employment contract specifying the circumstances under which they may terminate the employee (e.g., “for cause”), and (2) whether there is any factual basis for concluding that the employer has engaged in unlawful discrimination – i.e., treated the employee worse “because of” the employee’s membership in a protected class, such as race, color, sex, national origin, religion, sexual orientation, etc.

New York adheres to the “at will employment” rule.

If the employee has a contract that specifies the circumstances under which they may be terminated – e.g., “for cause” – the initial inquiry is whether the employee’s conduct will qualify as a terminable offense. This is a heavily fact-specific inquiry that requires careful analysis of the contract’s language, measured against the employee’s conduct.

Even if the employee is an “at will” employee, they still have rights. For example, at-will employees are still entitled to the protections of the anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law.

Here, the issue is whether the employer treated the employee differently – i.e., worse – than other “similarly situated” persons outside their protected class. For example, evidence that the employer terminated a Hispanic employee for engaging in certain conduct while looking the other way, doing nothing, etc. when a similarly-situated white employee engages in the same conduct might (but will not necessarily) indicate that the employer has unlawfully discriminated.