Terminating Employees for Off-Duty Conduct

Employers can terminate employees for what the employees do in their personal, non-working time.  This is true for non-contractual (i.e., at-will) employees in most states. 

Some states have laws that prohibition employers from considering off-duty conduct when making an adverse employment decision.  For example, New York State has one such statute, known as a “lifestyle-discrimination” law.   West Virginia has a law that prohibits employers from taking an adverse employment action based on the fact that an employee uses tobacco.  There aDiscrimination Hurtsre several such laws scattered across the country, known as “Smokers Rights” statutes.  But these laws are the exception–not the rule.  

Contrary to what many employees believe, the general rule is that employers have the right to terminate employees for any reason, so long as it is not an unlawful reason, such as race, religion, gender, age, disability, etc.   This means that you can be fired because you have hot-pink hair.  Or for dating your boss’s daughter.  Or for being a loyal drinker of the brand of beer made by your employer’s #1 competitor.  And, outside of the states where lifestyle discrimination is prohibited, all of this is perfectly legal. 

Unlawful discrimination requires, in short, some unlawful conduct. Discrimination alone is not against the law.  We all discriminate countless times every day.  The word “discriminate,” is defined by Webster’s as “to mark or perceive the distinguishing features of.”  We do this all day long.  We discriminate between ham and turkey for lunch.  We discriminate based on our color biases when we choose between the black and navy suits.  We discriminate when we attend one child’s soccer game over another’s baseball practice. None of these choices are unlawful–they’re just choices. 

Similarly, employers make choices and decisions for a variety of reasons that are not limited exclusively to work-related factors.  So long as these factors do not include any of the statutorily prohibited bases, such as disability, genetic information, or national origin, for example, there is nothing unlawful about doing so.   Off-duty conduct, such as what kind of car you drive, where you buy your groceries, and whether you like your eggs fried or over easy, are all legal bases for making an adverse employment decision.  [And, for the record, you’ll note that I said legal but I did not say legitimate–what’s lawful does not necessarily equate with wise decisionmaking.]

For more on the topic of the role of off-duty conduct in employment decisionmaking, see Dan Schwartz’s recent post at the Connecticut Employment Law Blog discussing a claim brought by a teacher who was fired for his MySpace page, which Michael Stafford covered from the education-law perspective in his post, MySpace and Employment: Another Tale of Woe or any of the other posts we’ve written on Off-Duty Conduct here at the Delaware Employment Law Blog.

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One response to “Terminating Employees for Off-Duty Conduct”

  1. Sasha says:

    One of my fellow employees was fired from his waiting positon while off duty.He had gotten in to a disagreement with a customer that did not get physical.The customer is a regular in the bar that We work at but this employee gets fired and the customer which was in the wrong is able to continue to come in. What grounds does the employer have for fireing him?He did not break the law or harm this other person in any way.What can he do about this.There were witnesses saying the the waiter was not at fault but her got fired any way.

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