Technically yes, but there are some important caveats that will impact the risk you are taking to terminate an employee for “fit”….read on.

Legally speaking, Washington is an “at will” state, meaning that an employee can be terminated at any time, without notice or cause, PROVIDED it is not a reason prohibited by law which would be reasons based on the employees age, gender, ethnicity, religion, or sexual orientation.

This means that your termination decision has to be made based on what the employee is or is not doing in your work environment, not on who they are.

Sounds simple, but all personnel decisions not matter how clear in the decision makers mind, must be defensible in a court of law, particularly if the employee is a member of a  “protected class”, and for some reason believes they have been discriminated against. .

Here are a handful of things you can do to protect yourself from claims of “unlawful” termination.  

  • Make sure all your expectations – even those regarding “fit” – are clear.  If you use the word “fit” in either the hiring or firing process, make sure you have and communicate a clear definition of what that term means to you.  From our experience working with clients in the hiring process, “fit” can have a lot of meanings – things like “this is how we typically communicate with one another, how we solve problems, how we deal with conflict” etc.  In the hiring process, our job is to drill down on those definitions of “fit” and then screen candidates based on whether or not their work style is a good match for our client’s work environment.  The same will be true in a decision to terminate –  employees need to know under what circumstances they would be terminated.
  • Make sure the employee knows why they are being terminated – what behaviors they were or were not doing that lead to their termination.  Telling the employee they “didn’t fit” doesn’t provide the information you will need if the employee challenges your decision in a court of law and may even further their case, not yours.
  • Document the efforts that were made to improve the employee.  As soon as you see an employee not meeting your expectations, talk to them immediately, pointing out what behaviors are problematic and asking them to improve.  If what they are doing (or not doing) is a serious issue, make sure they know that improvement is necessary or they may be terminated.  Make sure they know you would terminate any employee under the same circumstances.
  • Always follow existing employment policies.  Your company may have specific provisions that need to be honored before an employee can be terminated – a specific number of warnings, improvement plans.   Be aware of all these policies as they are promises to the employee, that if broken, can result in a charge of wrongful termination. Seek management or HR advice if in doubt.
  • Proceed with caution.  If you haven’t been keeping careful notes about your expectations or conversations with the employee about how they are not meeting your expectations, termination may be risky, particularly if the employee is in a protected class. Its never too late to start.



2 Responses

    1. Hi Gladys,

      The short answer to your question is No. If the person is in a protected class (over 40, or considered disabled in some way because of a health issue) they would likely win a claim that they were discriminated against. Employment is at will unless the employer violates any of the laws prohibiting discrimination.

      We hope this helps. Best of luck!
      The PACE Team

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