Insensitive? Yes. Crabby? Yes. Illegal Discrimination? Probably Not.

Advertisement from the McCook, Nebraska, newspaper via Michael Schwanke’s Facebook page

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

KWCH (Wichita, Kansas) television reporter Michael Schwanke posted a help-wanted ad from a McCook, Nebraska, auto-glass shop on his Facebook page that has gone viral on social media and brings up some basic truths about employment law. Here is the meme:

The overarching theme here is that regular and reliable attendance and a good attitude are essential job functions for this particular job, as they are for most jobs. Do some of these requirements seem unlawful? Maybe on their face, but they probably aren’t when you do the analysis. Here are few that might raise red flags and why they probably aren’t illegal.

Have no baby sitter every day” Yes, it is illegal to discriminate on the basis of being a parent. However, most jobs require reliable and regular attendance. Sure, problems with child care can be reasonably expected, but if it becomes a pattern and it disrupts work, then it is a legitimate reason for termination. 

“Have court often” There is a move to limit the use of criminal background checks in order to help ex-felons get hired, so maybe this looks bad. But again, “have court often” means that you are currently involved with the court system. If current legal issues keep you away from work too often, that could be a reason for termination. I believe that criminal background checks in employment often disproportionately affect minorities. However, barring any expression of animus against a particular race or nationality, the desire to not have your employees miss work often because of court appearances is a legitimate concern of a business owner.

“Oversleep” Sometimes medical conditions and the side effects of medications can make it difficult to wake up. Assuming your employer is covered by disability-discrimination laws, a situation like that would be covered. But again, if your job actually requires you to be present and working at a certain time and you can’t reliably meet that requirement, then your employer has a reason to fire you. 

A review of the comments on the Facebook posting showed that most of the commenters were sympathetic with the employer. Regardless of what I think about those comments as an employee advocate, people with those types of attitudes and feelings are going to be the ultimate deciders of whether an employer wrongfully terminated or otherwise violated the rights of a client of mine. So if you are terminated for a reason you think was wrong or otherwise mistreated by an employer, make sure that you did your best to fulfill your duties as an employee – especially in regards to attendance.