If you’ve ever said, “We’re an at-will employer—we can terminate anyone at any time,” you’re not alone. It’s one of the most common statements I hear from managers, which may be followed by a decision that, unfortunately, led to legal trouble. I love when I get this question when I am training managers, because it gives me the opportunity to educate on the false sense of security that many have around the phrase “at-will.”

While at-will employment does generally mean that either the employer or employee can end the relationship at any time, with or without notice and with or without cause, it’s not a free pass to terminate for any reason.

So What Is At-Will Employment?

At its core, at-will employment means there’s no contract guaranteeing continued employment. An employee can resign, and an employer can make personnel changes without a contractual obligation to justify the decision.

However—and this is where employers sometimes go wrong—the decision still cannot be stemming from an illegal reason such as:

• Discrimination
• Retaliation
• Violation of a Protected Right
• In violation of public policy

Just because you can end an employment relationship doesn’t mean it’s legally safe to do so without proper context, documentation, or consideration of protected rights.

Real-World Examples of Misunderstood “At-Will” Terminations

• A supervisor terminates an employee shortly after they request medical leave.
  The employer believes it’s allowed under “at-will,” but in reality, it likely violates the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA).
• An employee with years of great performance is terminated without documentation or warning after a new manager comes on board.
  The lack of documentation opens the door to a wrongful termination or discrimination claim—even if the termination wasn’t for an illegal reason.
• A long-time employee is let go after filing a workplace safety complaint.
  The employer invokes “at-will” status, but this could easily be seen as retaliation, which is protected against under federal and state laws.

These examples highlight the  importance of DOCUMENTATION, which was covered in Weeks 5-7 of this blog series.

In the workplace, consistency is key—especially when it comes to making decisions about employees. Whether it’s hiring, promotions, discipline, performance reviews, or terminations, how an organization handles one situation should inform how it handles others. This is where precedent comes into play.

When a business establishes a clear pattern of decisions (i.e., precedent), it not only helps ensure fairness but also provides a critical layer of protection against discrimination claims. As an employment attorney at Eckberg Lammers, P.C., I frequently advise businesses on how the concept of precedent plays a crucial role in protecting against legal risks, particularly when it comes to workplace discrimination.

In this article, we’ll discuss what workplace precedent is, why it matters, and how you can use it to shield your organization from potential discrimination lawsuits.

What is Precedent in Workplace Decisions?

Precedent refers to a consistent, established pattern of behavior or decision-making within an organization. In the context of workplace decisions, it means that similar situations should be handled similarly. For example, if an employee is terminated for a specific performance issue, it’s crucial that similar performance issues in the future are treated in the same manner, with no deviations based on factors like race, gender, or other protected characteristics.

Precedent can apply to various areas of workplace decision-making, including:

• Disciplinary actions (e.g., write-ups, suspensions)
• Performance evaluations and how feedback is given
• Promotion and pay raises
• Accommodation requests under ADA
• Leave management (e.g., FMLA, sick leave)

When organizations fail to follow established precedents, or apply rules inconsistently, it can create a perception (or reality) of discriminatory treatment, leading to costly and time-consuming discrimination claims.

Why Does Precedent Matter for Discrimination Claims?

1. Consistency Demonstrates Fairness

The most straightforward benefit of maintaining precedent in workplace decisions is that it demonstrates fairness. If employees see that others in similar situations are treated the same way, they are less likely to feel that their treatment was unfair or discriminatory.

For example, if an organization consistently follows a policy of issuing written warnings for attendance violations, but suddenly makes an exception for one employee based on their protected status (e.g., race, gender, disability), it could open the door to claims of discriminatory treatment.

2. It Reduces the Risk of Perceived Discrimination

Discrimination claims often arise when employees feel that they were treated differently than their colleagues, especially when they belong to a protected class. If an organization does not have a consistent approach to decision-making, it could inadvertently create the appearance of discrimination—even if the decision was actually based on a valid reason.

A lack of precedent creates confusion and inconsistencies, both for employees and for potential legal claims. For example, if one employee receives a promotion for their performance, but another employee with similar performance records is passed over without explanation, it raises questions about whether discriminatory motives were involved.

As an attorney, I often tell employers that individuals can sue for any time, for any reason, legitimate or not, and that organizations will have to defend those claims with no reimbursement of fees. Reducing the perception of discrimination is critically important to reducing employment claims.

3. Establishing a Defense Against Claims

In the event of a discrimination lawsuit, having consistent precedents in place can help defend your decisions. If an employee claims they were discriminated against in a termination or promotion decision, one of the first things that will be scrutinized is whether similar employees in similar situations were treated the same way.

If you have clear, documented precedent that shows similar decisions were made consistently across the board, it will be much harder for the plaintiff to prove that they were the target of discrimination. For example, if your organization has a long-standing practice of promoting employees based on merit and performance, showing that other employees with similar performance were similarly promoted can strengthen your defense.

4. Mitigating the Risk of “Disparate Treatment”

Disparate treatment occurs when employees in similar situations are treated differently based on their protected class status (e.g., age, race, gender). A key factor in proving disparate treatment is showing that the employer applied its policies or procedures inconsistently. Precedent is crucial in ensuring that employees are treated equally, regardless of their identity or status.

By following consistent decision-making processes for all employees, an organization can protect itself from accusations of disparate treatment. If a company enforces a policy that has been applied uniformly in the past, there is a lower risk of any one employee feeling unfairly targeted based on discriminatory motives.

Precedent Can Be Changed—But Cautiously

While consistency is key, it’s important to note that precedent can change over time. As businesses evolve, so too do their policies and practices. A company may need to modify its procedures to better reflect changing laws, new company priorities, or evolving workplace dynamics. However, it is crucial that any changes are documented and communicated clearly to ensure that employees understand why the change occurred and how it affects them.

For example, if a business adjusts its approach to promotions, perhaps due to shifting company goals or market conditions, it’s essential to ensure that the new approach is consistently applied across the board. Failure to make these changes transparently can result in confusion or perceptions of favoritism. Changes to precedent should be based on legitimate business reasons, not on any protected characteristic of employees, and the rationale for changes should be well-documented to avoid legal risks.

How to Use Precedent to Avoid Discrimination Claims

1. Document Decisions Clearly and Consistently

For any decision you make—whether it’s disciplinary action, promotions, or performance reviews—ensure that you have clear documentation that supports the reasoning behind your decisions. This documentation should demonstrate that the decision was consistent with past actions and in line with company policy. This was more thoroughly covered in Weeks 5-6 of this series.

2. Ensure Equal Treatment in Similar Circumstances

Evaluate your decision-making process regularly to make sure that similar circumstances are handled in the same way. This includes applying policies such as attendance, performance, promotion, performance management, leave management, and other policies in the same manner for everyone, regardless of race, gender, age, or any other protected characteristic.

3. Train Managers on Consistency

Managers should be trained to understand the importance of precedent and how their decisions may impact the organization legally. Encourage them to apply policies consistently and to ask for guidance when they’re unsure about how to handle a situation.

4. Review and Audit Employment Practices Regularly

Conduct periodic audits of your organization’s employment practices to identify any inconsistencies. Look at recent terminations, promotions, and other major decisions to ensure that no protected groups are being treated unfairly. If inconsistencies are found, take immediate corrective action. One of the first questions that I ask employers who are reaching about with questions on performance management is how have similar situations been handled in the past.

Conclusion: Precedent as a Shield Against Discrimination Claims

Workplace decisions are rarely made in isolation. When similar situations are handled differently, employees take notice—and so do courts. Inconsistent or discriminatory treatment can expose your business to legal liability and significant reputational damage.

By establishing clear, consistent precedents in your decision-making processes, you not only ensure fairness but also protect your organization from discrimination claims. However, remember that while precedent is important, changes to workplace decisions may be necessary at times. It’s critical that those changes are handled with care, properly documented, and communicated to employees.

If you’re unsure whether your company is applying its decisions consistently or need assistance reviewing your policies, Eckberg Lammers, P.C. is here to help. We work with businesses to help create compliant, fair systems that mitigate legal risks and support a positive workplace culture.

Call us at (651) 439-2878 or email us at contact@eckberglammers.com