Taking On The Employer’s Judicially-Created Shield & Sword: The Employment At-Will Doctrine

Having litigated employment law cases for more than twenty years, our employment lawyers in Marion County, Florida know that the judicially-created employment at-will doctrine gives employers almost absolute power over the employment relationships with their employees. In its original pristine form, the judicially-created employment at-will doctrine means that an employer can fire an employee for any reason, including a good reason, a bad reason, or no reason. In the hands of employer-friendly judges over the decades, the judicially-created employment at-will doctrine has evolved to mean that an employer can make an employment decision for any reason, including a good reason, a bad reason, or no reason. The purpose and effect of the judicially-created employment at-will doctrine is to immunize employer from liability for their employment decisions.

The decision by the U.S. Seventh Circuit Court of Appeals in Meching v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988) is illustrative of how some courts utilize the judicially-created employment at-will doctrine to give employers almost absolute power over the employment relationships with their employees. In that case, the court declared that “no matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers,” courts do not interfere with an employer’s employment decisions.

We Are Not “Super-Personnel Departments”

Although the employment at-will doctrine was created by the judiciary in the 19th century long before the passage of employment laws prohibiting discrimination and retaliation, many courts continue to rigorously apply and zealously promote the employment at-will doctrine. In Abel v. Dubberly, 210 F.3d 1334 (11th Cir. 2000), for example, the U.S. Eleventh Circuit Court of Appeals asserted that “an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.” Although courts, such as the Abdel court, acknowledge that application of the judicially-created employment at-will doctrine is constrained by 20th century employment laws prohibiting discrimination and retaliation, their acknowledgment is too often disingenuous judicial lip service. Indeed, employer-friendly courts have come up with a broad array of other judicially-created rules that flow naturally from the employment at-will doctrine and limit the protection guaranteed by employment laws prohibiting discrimination and retaliation.

In attempting to narrow the restrictions imposed on the judicially-created employment at-will doctrine by employment laws prohibiting discrimination and retaliation, courts routinely declare they do not act as “super-personnel departments” and do not weigh the merits of employment decisions. For example, the Eleventh Circuit in Alvarez v. Royal Atlanta Developers, Inc., 610 F.3d 1253 (11th Cir. 2010) asserted that “we do not sit as a ‘super-personnel department,’ and it is not our role to second-guess the wisdom of an employer’s business decisions—indeed the wisdom of them is irrelevant—so long as those decisions were not made with a discriminatory motive.” In equating the judicial scrutiny of an employment decision to acting as a “super-personnel department,” these courts are in effect wielding the employment at-will doctrine as a shield and a sword on behalf of employers, and immunizing employers from liability for their employment decisions except in the most blatantly discriminatory or retaliatory cases.

Judicial Scrutiny Of Employment Decisions

Some courts, however, reject an expansive application of the employment at-will doctrine where judicial scrutiny of an employment decision amounts to “sitting as a ‘super-personnel department.’ ” In Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998), the U.S. Sixth Circuit Court of Appeals determined that in evaluating whether an employment decision was discriminatory or retaliatory, courts should inquire into “whether the employer made a reasonably informed and considered decision.” In its decision in In re Lewis, 845 F.2d 624 (6th Cir. 1988), the Sixth Circuit explained that the “more questionable the employer’s reason” for an employment decision, “the easier it will be for” an employee to expose it as having been made for a discriminatory or retaliatory reason. Likewise, in Westmoreland v. TWC Administrations, LLC, 924 F.3d 718 (4th Cir. 2019), the U.S. Fourth Circuit Court of Appeals ruled that courts are permitted to consider “an employee’s tenure and performance in evaluating whether the employer’s articulated justification for the employee’s termination is so flimsy as to be untrue or implausible, and thus asserted in an attempt to mask a discriminatory [or retaliatory] motive.”

In this article, our employment lawyers in Marion County, Florida explain how the decision in Davis v. Miami-Dade County, 2024 WL 4051215 (11th Cir. Sept. 5, 2024) illustrates that the judicially-created employment at-will doctrine does not prevent courts from scrutinizing employment decisions.

Employment Discrimination Lawsuit

In that case, a man named Davis brought an employment discrimination lawsuit against his former employer, Miami-Dade County (the “County”), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). Under Title VII, employers are prohibited from discriminating against employees on the basis of race. The ADEA protects employees from discrimination on the basis of age. Davis, who is white and over the age of forty, claims that he was fired because of his race and age.

In 2017, Davis began working for the County in the Office of the Commission Auditor. Davis alleges that despite never having given him any negative feedback, the County fired him—with only an opaque and vague explanation that he was not meeting his supervisor’s “vision”—and replaced him with a much younger employee, Edwards, of a different race who had been his subordinate. When he was fired in 2020, Davis was the only man of his race in a leadership position. Edwards had originally been hired as Davis’s subordinate only three years previously, around the same time that Davis himself was hired.

The trial court dismissed Davis’s discriminatory discharge claim. Davis then appealed the trial court’s dismissal to the Eleventh Circuit. On appeal, the County argued that “not meeting your boss’s vision of the job is a legitimate non-discriminatory reason for dismissal and that it was not suspicious to give Davis’s work to Edwards, who had worked for the County just as long as Davis and therefore had the same level of experience.” The Eleventh Circuit rejected the County’s argument and reversed the trial court’s dismissal of Davis’s discriminatory discharge claim.

Court Scrutinizes Termination Decision

Unlike the reversed trial court, the Eleventh Circuit recognized that although “employers may fire at-will employees for any non-discriminatory reason,” courts are nonetheless “free to scrutinize an employer’s decision to check that it is not mere pretext for discrimination.” The appellate court found that the County’s termination decision “is particularly worth scrutinizing” because “Davis has also alleged that he was the only white man in a leadership position when he was fired, and that, in the 32 months he worked for the County, he was never informed of any performance issues, never counseled for any misconduct, and never given an annual evaluation, despite requesting one several times and despite the fact that it was in accordance with County policies to receive an annual evaluation.” The Eleventh Circuit reasoned that “we would expect that if an employee were genuinely not meeting his employer’s ‘vision’ over a period of almost three years, the employer would warn him that he was not meeting expectations and give him a chance to improve before firing him.”

In further scrutinizing the County’s termination decision, the Eleventh Circuit explained that the County’s only reason for firing Davis—that he was not meeting his supervisor’s “vision”—was “an opaque reason at best.” “Not only are there many meanings behind this term,” the court of appeals pointed out, “but it can be applied in various ways.” Davis’s supervisor, the appellate court observed, “could’ve meant that he had a plan for how the office would run and he didn’t see Davis as part of that ideal office, whether because of his work product, his personality, or—the most sinister possibility—because of his age or race.” Or Davis’s supervisor “could’ve meant,” the appellate court noted, “that he’d asked Davis to carry out work in a certain way, and Davis had failed to do so.” “If that were the case though,” the Eleventh Circuit reasoned, “it seems odd for the County not to have given Davis any negative performance evaluations, or even a single evaluation, for his entire 32-month stint at the office, notwithstanding having been repeatedly asked to provide Davis with an evaluation and notwithstanding that it was County policy to provide one.”

Marion County Employment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our employment lawyers in Marion County, Florida have fought for the rights of employees for more than twenty years. If you have experienced workplace discrimination or have questions about your rights as an employment discrimination victim, please contact our office for a free consultation with our employment lawyers in Marion County, Florida. Our employee rights law firm takes employment discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.