May 1996
May 1996
The general rule in the majority of states is that, in the absence of an employment contract for a specified duration, both the employer and the employee are free to terminate the relationship for any reason, or no reason at all. This "at-will" rule operates to preclude causes of action for wrongful discharge in many cases. Furthermore, both federal and state laws prohibiting discrimination in employment usually apply only to persons or entities that employ a certain number of people. Thus, for example, the federal prohibition against race, sex, religion, and national-origin discrimination contained in Title VII of the Civil Rights Act of 1964 applies only to employers with 15 or more employees. Likewise, most state fair-employment statutes apply only to employers with a certain minimum number of employees.
Although small employers would, therefore, appear to be beyond the reach of prohibitions against discrimination, several recent cases indicate that small employers are not necessarily insulated from liability for discriminatory discharge. In many states, plaintiffs have successfully invoked the state's expressed public policy against discrimination to bring their discharge within an exception to the at-will rule. Recognizing a cause of action for wrongful discharge based on the public policy expressed in these statutes essentially allows plaintiffs to make an "end run" around the number-of-employees requirement.
In Brandon v. Molesworth, No. 83 Sept. Term 1995, 1996 WL 93892 (Md. Mar. 5, 1996), a discharged veterinarian brought a wrongful discharge action based on the public policy against sex discrimination in employment decisions articulated in the state's Fair Employment Practices Act ("FEP Act"). The employer argued that because he employed fewer than 15 people, which is a threshold requirement for the application of the Maryland FEP Act, he was exempt from the statute's enforcement provisions and its statement of policy. After a review of the legislative history behind the Maryland FEP Act and similar decisions in other jurisdictions, the Maryland Court of Appeals stated that, although employers with fewer than 15 workers are specifically excluded from the coverage of the FEP Act, the statute did not exempt small businesses from its policy against employment discrimination.
Accepting a contrary view of the statute, the court noted, would "grant small businesses in Maryland a license to discriminate against their employees with impunity." Thus, the court held that employees of small businesses can use the FEP Act as a basis for the public policy exception even though the FEP Act's procedural requirements and enforcement mechanisms do not apply to the employer.
John F. Buckley IV
Senior Attorney, Civil Rights
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