Chick-fil-A Could Be Jumping Out of the Frying Pan and Into the Fire

Chick-fil-A has created a significant risk for themselves in any future employment discrimination claims based on sexual orientation because it will be hard for them to argue that an anti-gay culture does not exist within the company from the top to bottom.

At-Will Employees May Be Terminated Without Cause But Not For Discriminatory Reasons

Unless you're a member of a Labor Union, or have negotiated an employment contract with your employer, you are probably an at-will employee which means that you or your employer can end the employment relationship at any time, for any reason and with or without notice. In other words, an at-will employer does not have to have "good cause" to terminate an employee.

Judicial interpretation, however, of Title VII of the Civil Rights Act of 1964 continues to evolve placing sexual orientation into the group of protected class of workers along with other familiar ones including race, sex, and religion. Many states have also passed their own legislation protecting individuals from discrimination based on sexual orientation. This means that adverse employment decisions based on an employee's sexual orientation is unlawful discrimination. Simply put, any adverse employment decision by Chick-fil-A against a gay employee would be illegal. An adverse employment decision could be failing to promote an otherwise qualified gay employee, punitive transfers or shift changes, any kind of discipline or wrongful termination. If the employment action is based in any part on an employee's gay status, it is illegal.

Typically, in an employment discrimination or wrongful termination claim based on protected class, a defendant employer will almost always argue the adverse employment decision was made because of an employee's poor performance and not the fact that the employee was gay, or black or pregnant, or muslim. Discriminated employees have a tough time at trial proving that the employer cultivated a discriminatory environment against a particular protected class. Often times an employer's denial is persuasive, at the Widget Company we would never fire an employee because they are gay. The problem for Chick-fil-A as a result of the current controversy is they've done a lot of the work for a potential plaintiff who may file a claim for discrimination or hostile work environment based on sexual orientation. Chick-fil-A's protestations in the event of future discrimination claims by gay employees, that Chick-fil-A would never discriminate against gay employees could well ring hollow for many jurors. There are a reported 1600 Chick-fil-A restaurants across the country, with thousands of employees. Some of them are gay. What happens when they decide they're no longer going to keep their sexual orientation a private matter?