Sometimes, it can. Employers can fire employees for many reasons (or no reason!), and this is especially true when the employee violates a rule, whether he or she knew about it or not.
However, a recent Ohio case demonstrates a problem that can arise in these circumstances. A group of 54-62-year-old Walmart workers were fired when they were caught accepting “half-dead” plants from a vendor who was going to throw them away. As it turned out, this was a violation of Walmart’s gift policy; though none of the three fired workers was aware of this.
The court held that the workers could proceed with their case for age discrimination based on their terminations. There were previous instances in which younger workers were not fired for this exact conduct, and it was not mandated by Walmart’s HR guidelines that this violation would lead to termination. See Moffat v. Walmart Stores, Inc., 10th Cir. Aug. 17, 2015.
In this case, the reason for their termination– taking half dead plants- could be a pretext for firing the employees based on their age. The allegation is that Walmart was looking for an excuse to fire them without looking like they were discriminating. The fact that the employees did not know about the rule functioned in this case to bolster their claim that it wasn’t a very important rule and that they had seen other, younger workers take plants without being fired.
Think you may have been fired for a discriminatory reason, let us know! Contact us at The Hayber, McKenna & Dinsmore