Yes, You Can Be Fired for Wearing The Wrong Tie

I’m not much of a sports fan. At best, I could be called a fair weather San Francisco Giants fan (2010 was a good year for my kind). So my puzzlement at the conduct of both parties in this employment dispute is hopefully understandable. I don’t live in the world of sports fans, and I have no idea what motivates some of their conduct.

In a suburb of Chicago, a car salesman was fired for wearing a Green Bay Packers tie on the day the Chicago Bears suffered a bitter defeat at the NFC Championship game, at the hands of the Green Bay Packers, their hated rivals. A sad day for Da Bears, indeed.

Anyway, the car salesman showed up to work wearing a Packers tie. The owner of the dealership, a Bears fan, who had done some promotional work with the Bears before, demanded that the employee remove the tie. The employee said that his grandmother, a lifelong Green Bay fan, had recently passed away, and he was wearing the tie as a showing of respect to her, and refused to remove his tie. He was subsequently fired.

There is some speculation that the employee might take legal action. However, the publicity he’s received has apparently already led to a few job offers from rival car dealerships, so he probably won’t have a lot to gain from a lawsuit. But if he decided to sue for wrongful termination, could he win?

Almost certainly not.

Almost everywhere in the United States, the default employment arrangement is known as “at-will employment.” This means that an employee can be fired for any reason or no reason at all. On the flipside, it also means that the employee can quit with equal impunity. But you’ve probably read about plenty of lawsuits in recent years for “wrongful termination.” If an employer can legally fire a worker for any (or no) reason, how can a legal concept called “wrongful termination” even exist?

As with almost any law, there are exceptions to the “at-will employment” rule. First of all, it’s simply the default rule. If both parties are willing, an employer and employee can enter a contract stating that the employee will be retained for a specific amount of time, and that the employee can only be fired when there is a good reason to do so (and acceptable reasons will usually be listed in the contract).

But the news coverage of this story makes no mention of a special contract between the employer and employee, which might modify the standard at-will arrangement. So, how is there even speculation that the termination was wrongful?

In addition to the right to modify the standard at-will arrangement through contract, the law has imposed exceptions that operate with or without a contract. When there is a lawsuit for wrongful termination, it’s these laws that are often brought up. Under federal law, it’s illegal for employers (public and private) to discriminate on the basis of race, color, national origin, religion, sex, disability, and age. And the federal government takes enforcement of these hard-won civil rights laws very seriously.

Furthermore, some states believe that these federal laws don’t go far enough, and have passed their own anti-discrimination laws. For example, Illinois has made it illegal to discriminate in employment on the basis of sexual orientation, which is still not prohibited under federal law, despite repeated efforts to pass such a law.

Nonetheless, as far as I know, no state has any law that prohibits employment discrimination on the basis of one’s clothing or favorite NFL team. While you or I might argue that this firing was unfair, an overreaction, and a silly decision, the fact remains that it was the employer’s decision to make.

And while I believe that anti-discrimination laws have done a great deal to promote racial and gender equality in the United States, infringement on the hiring decisions of a small number of private employers (after all, the majority of employers, if they’re economically rational, will hire the most qualified applicant for a given job, regardless of race, gender, or any other irrelevant factors) is merely a small and necessary sacrifice.

However, we have laws to establish a bare minimum standard of conduct in a society, and that’s how it remains. I’ve blogged before about our unfortunate tendency to over-legislate in the face of every new problem. The fact is, in a free society, people will be allowed to do some stupid and (arguably) immoral things. That includes, in my view, firing an employee because you don’t like the same football team.

Also, while it seems silly to me, I would not be surprised if wearing a Packers tie might turn off a lot of potential customers in the Chicago area, not to mention the fact that the car dealership was involved in some promotional deals with the Bears. Therefore, wearing that tie could have a direct, negative impact on the business.

While prohibiting discrimination based on immutable characteristics such as race and sex are fine, the government should not interfere with the right of business to make hiring and firing decisions based on the personal choices of employees, even if that choice is not directly related to job performance. This is because, from an economic standpoint, the system of at-will employment, with a basic safety net to ensure that discrimination based on immutable characteristics doesn’t occur, seems to be a pretty good system. Secure in the knowledge that firing an employee who doesn’t work out will be a relatively easy process, employers might be more inclined to take a chance on a new hire.

In countries that don’t have at-will employment, where it is much more difficult to fire employees, unemployment tends to be significantly higher, especially among young, inexperienced workers.

We seem to have struck a decent balance between the two systems, even if it means you might have to think twice about voicing your support for a particular football team while at work.