Thirty-eight years after the passage of the Civil Rights Act of 1964, even the most benighted of bosses knows that employment discrimination laws prohibit discrimination on account of age, sex, color, race, religion and national origin in virtually all aspects of employment ? hiring, transfers, promotions, firings, layoffs, etc. And given the right set of circumstances, employers can face a lawsuit arising from any employment action, sometimes (at least from a beleaguered employer's point of view) over the most trivial. Nevertheless, the overwhelming majority of employment discrimination lawsuits arise from the firing of employees. Employment-law lawyers know this intuitively from the day-to-day grind of their practices and the statistics bear them out.

It is critical that employers know precisely what the employment discrimination laws require and prohibit when it comes to firing an employee. (Because the Americans with Disabilities Act ("ADA") and the Family and Medical Leave Act ("FMLA") place unique duties on employers, this Note does not deal with the firing of employees covered by the ADA or
FMLA)

What do the employment discrimination laws require of employers? Very little, really. The employment discrimination laws do not require the employer to have "just cause" to fire an employee. An employer may need just cause to uphold the firing of an employee covered by an employment contract or a collective bargaining agreement, or to deny unemployment compensation benefits to the fired employee. However, the employment discrimination laws do not require an employer to abide by any formal or informal code of good employment practices when firing employees.

The law does require the employer to be consistent. "Require" is really too strong a word. The law requires only that an employer not fire an employee because of the employee's age, sex, color, race, religion, national origin, etc. But as a practical matter, the law does require an employer to prove that it acted consistently, that the employer treated the fired employee no differently from other employees (of a different age, sex, race, etc. from the fired employee) who engaged in the same misconduct or had similar performance problems as the fired employee. For example, if an employer is sued for allegedly firing a female employee because of her sex, i.e. because she is a woman, evidence that the employer fired male employees for the same misconduct or performance problems should be sufficient to convince the court to dismiss the case. In a nutshell, the law does not require the employer to be just or fair, just consistent. Consistency is usually (and correctly) considered one element of fairness. But consistency standing alone does not imply fairness. An employer who fires all employees (black, white, men, women, gentiles and jews) whom the employer discovers root for the New York Yankees is not being fair (at least in the mind of anyone other than a Boston Red Sox fan) but he is being consistent. And the employment discrimination laws demand consistency, not fairness.

What do the employment discrimination laws prohibit? The laws prohibit an employer from firing an employee "because of" the employee's age, sex, race, religion, national origin, etc. What do the words "because of" mean? In a sex discrimination case, for example, where a woman alleges that her employer fired her because of her sex, what does the woman have to prove in court in order to establish that she was fired "because of" her sex?

Judge Frank Easterbrook of the 7th Circuit Court of Appeals in Chicago has provided a clear answer.

The central question in any employment ? discrimination case is whether the employer would have taken the same action had the employee been of a different race (age, sex, religion, national origin, etc.) and everything else had remained the same. (Carson v. Bethlehem Steel Corporation, 70 FEP Cases 921 (7th Cir 1996)).

In other words, to prove that she was fired "because of" her sex, the fired female employee must prove that her gender, the fact that she is a woman, made a difference in the employer's decision to fire her, that if she had been a man and not a woman, she would not have been fired.

An employer should keep Judge Easterbrook's definition in mind when contemplating firing any employee and ask two questions: First, am I acting consistently? Everything else being the same, would I fire an employee whose age, sex, color, race, religion, national origin was different from the employee whom I am now contemplating firing? Second, other than my self-serving declarations of good faith, do I have evidence to prove that I am acting in good faith, and that I am not firing the employee because of the employee's age, sex, color, race, religion, national origin? Employers that can truthfully answer yes to both questions should be able to successfully defend an employment discrimination lawsuit over the firing of an employee.