One of the more interesting and challenging aspects or practicing in the area of employment law is when you have to convince your client that while they legally can terminate an employee that it is probably not in their best interests to do so.
Employment law attorneys across the country received a real life case scenario to use in their conversations with their clients in the above delicate situations when it came to light that KAKS, a northwest Arkansas radio station, fired radio personality Renee Gork.
Gork, a Florida graduate, claims that she was fired on Monday by KAKS because she wore a Florida Gators hat to an Arkansas Razorbacks news conference.
Gork’s story is that she grabbed a Florida hat leaving her house to keep her head dry from a rain storm. Upon arriving to the news conference she didn’t think to take off her hat.
Arkansas Coach Bobby Petrino however did not fail to notice Gork’s hat probably since the Razorbacks lost last season to the Gators 23-20.
After Gork asked Coach Petrino a question, Coach Petrino reportedly politely answered her question and then added, “And that will be the last question I answer with the hat on.”
Gork, apparently understanding that she had offended the Head Coach reportedly sent a letter of apology to the University of Arkansas and Coach Petrino.
KAKS, Hog Sports Radio, however felt that retaining Gork would not be in its best interests because apparently she was not 100 percent behind the Razorbacks.
When asked to confirm Gork’s termination, KAKS general manager Dan Storrs confirmed that Gork was no longer employed by the radio station and that “[KAKS] is Hog Sports Radio. We are very biased. We support the Razorbacks 100 percent.”
Gork wrote of KAKS’ Twitter account, “Was hoping to publicly apologize to Coach Petrino and UA fans on the show today . . . but I won’t get that chance, I’ve been fired.”
One can also imagine that Gork is probably not as naïve as it is being suggested in most media reports. Does anyone really believe that she didn’t get a handful of sly remarks about her choice of hats from her fellow members of the press before she asked Petrino a question at the press conference?
Most employers know that they are at-will employers, which means that they generally can terminate an employee with or without cause unless the employee has entered into an employment contract. Another clause is there if they are subject to a collective bargaining agreement.
Of course, most smart employers also know that it is generally juries to whom they have to justify their decision in an employment lawsuit. Juries, who are generally comprised of people who are employees, typically expect that employers will not fire their employees unless they have a good reason to do so.
Assuming Gork had no employment contract with KAKS and was not subject to a collective bargaining agreement, KAKS could terminate Gork as long as its reason for terminating her did not constitute illegal discrimination under federal or state law.
While an employer’s dress policy may constitute a discriminatory practice if applied unevenly between its male and female employees, in the present situation it appears that KAKS would have applied its dress policy evenly across the board.
The KAKS policy is not discriminatory if the policy of KAKS is that you wear a Gators hat, you aren’t showing the proper respect for Razorback nation and you are out the door regardless of whether you are a man or a woman.
While KAKS had the right to terminate Gork as the decision was not discriminatory and KAKS appears not to have violated any contractual obligation that existed between it and Gork. the decision to fire Gork may still have been wrong.
However, the decision by KAKS is wrong in the sense that the radio station may have incurred more ill will among its customers. This outweighs the benefits derived from firing Gork.
Most internet polls have people saying that that the decision by KAKS to fire Gork was wrong by a 2:1 ratio.
Additionally the decision by KAKS may be wrong in the event that if Gork engages in revisionist history as to what occurred between her and management, KAKS may have a difficult time justifying its decision.
While not suggesting that Gork is going to allege that her termination was discriminatory, but if Gork does allege that her termination was discriminatory KAKS is then left in an unenviable position.
If Gork says her termination was motivated by discriminatory intent on the part of KAKS, KAKS must then show that its decision to fire Gork for wearing her Florida hat at the Arkansas press conference was a reasonable decision.
Now, in the event that Gork brings a lawsuit KAKS might ultimately convince a jury that its decision was reasonable.
However, we know that at the present time that the current jury pool by a ratio of 2:1 thinks the decision by KAKS was not justified.
Just because you can do something doesn’t always necessarily mean you should.
Of course, there are a lot of employment attorneys out there that will tell you that it such advice is difficult for some clients to hear.