What is a wrongful termination?

There are several legal situations that can lead to a civil wrongful termination lawsuit. Among all wrongful termination complaints filed with the EEOC since 1997, on average 34 percent are due to race discrimination and 30 percent are due to gender discrimination. Retaliatory actions make up roughly one-quarter of wrongful termination cases.

At-will employment

Most employees work under at-will employment rules, meaning they can be fired for any reason. There are three exceptions to this rule.

• Implied contract: If at any time an employer advises their employee that they will continue to do business unless a certain boundary is breached, then they are considered in contract. Many states, including Texas and Florida, do not abide by this law, and others do not follow any verbal implied contract exceptions.
• Covenant of good faith: This statute dictates that an employer may fire an employee only if they have good cause to do so. Only ten states follow this rule in any capacity, including California and Alaska.
• Public policy: If an employee is discharged after performing an act according to public policy, such as filing for workers’ compensation or disclosing an employer’s illegal actions, firing them can be seen as wrongful termination in some cases. Eight states reject this rule.

Types of wrongful termination

While most Americans are at-will employees, even those bound to a contract can be fired for certain actions. Performing too many no-call no-shows, or receiving consistently poor quarterly reviews can lead to an employee being let go with cause.

A person can be fired “illegally” for myriad reasons, such as reporting illegal acts (whistleblowing), harassment or discriminatory actions. A person must be able to provide evidence that they were fired due to discrimination or retaliation in order to claim wrongful termination.

Employee discrimination

Unlawful termination suits can be backed up with support from anti-discrimination laws in certain situations. The Equal Employment Opportunity Commission (EEOC) defines employees who are protected by such laws. Employment discrimination is prohibited against people in regards to:

• Race
• Gender, including assigned gender, pregnancy status, gender identity or sexual preferences
• Color
• Religion
• National origin
• Disability or age if over 40
• Any available genetic information
• Inquiring about wages

What constitutes discrimination?

There are wrongful acts that can be perpetrated against an individual by an employer, a colleague, a mentor or teacher, or anyone else with whom one has a workplace relationship. These acts are:

• Any treatment that can be construed as unfair compared to the treatment of other employees
• Harassment of any kind
• Refusal to make reasonable accommodations based on short or long-term disability
• Denying a reasonable request for employee leave, such as maternity leave
• Inappropriate questions regarding medical history or genetic information
• Retaliation against an action brought upon a company due to workplace discrimination or illegal activity, aka whistleblowing
  

Agencies and statutes concerning wrongful termination

There are multiple federal agencies and programs that oversee workplace discrimination protections.

Civil Rights Center

The Civil Rights Center helps identify and address socioeconomic factors affecting today’s workforce and crafts effective policies to combat discrimination. A person who needs reasonable accommodation can file an official request with them, which is also delivered to the employer.

Equal Employment Opportunity Office (EEOC)

This office enforces federal laws that prevent employers from discriminating against employees. Most cases of unlawful firing are initially filed through the EEOC. Employers with more than 15 employees are generally bound to these laws.

The Office of Federal Contract Compliance Programs (OFCC)

This organization monitors discrimination in the federal contract and subcontractor sectors. Reports must be filed within 180 days for them to be valid, except in the case of protected veterans who have 300 days to file a report. Ombuds are available for those with questions about programs or who need assistance filing a discrimination case with the OFCC.

Architectural Barriers Act (ABA)

Firing an employee who requests accommodation can be seen as wrongful termination and discrimination against a person with disabilities and falls under the jurisdiction of the ABA.

Whistleblower Protection Program

When employees file complaints against current or former employers, they are protected under this program from retaliation against those employers. There are various complaints that could qualify, such as breaking any anti-discrimination laws or maintaining an unsafe workplace. There are more than 20 statutes protected under the whistleblower program, including reporting violations in the areas of financial reform, nuclear safety, antitrust laws and any action that endangers individual or public safety.

Three interesting wrongful termination suits

1. Unsubstantiated discrimination wrongful termination case upheld with Babb vs. Wilkie

Noris Babb of Florida was able to successfully sue her former employer for wrongful termination due to age discrimination in July of 2014. Her suit initially failed because she had insufficient evidence to support her claim, but it passed once it was reviewed by the Supreme Court. The Court’s decision was based on the argument that Babb was not required to prove her age was a factor in the personnel decision, as her contract only stated that employees “shall be free” from age-based discrimination. It did not stipulate that the employee must supply evidence of discrimination. It is now implicitly stated in employment contracts that employees must have substantial evidence to support discrimination lawsuits.

2. Teacher quits and attempts to claim wrongful termination when she loses her tenured position

After 2nd-grade teacher Melanie Lemon resigned from her tenured position in May of 2017, she sued the school district for wrongful termination due to her tenure. She claims that her leaving should be seen as a “constructive discharge” because she felt her colleagues were united in pushing her out of the school. Constructive discharge is a legal defense in the event that a company attempts to force an employee into resigning. The Tennessee Supreme Court, however, did not feel the school’s actions were aggressive enough to warrant a wrongful termination lawsuit. While office drama can lead to low employee satisfaction, ultimately it wasn’t seen as a viable cause for liability in this case.

3. Wrongful termination suit leads to $4.8 million in punitive damages — if the plaintiff stays unemployed

In California, on March 27, 2018, a former drugstore employee won a wrongful termination suit based on sexual harassment. Nearly five million dollars of the award was for intentional emotional damage inflicted on the plaintiff by her former supervisor in Martinez vs. Rite Aid. The judge, however, later lowered the amount by $140,840 upon discovering that the complainant had taken a new position the following year and earned a substantial income.

Wrongful termination FAQs

Can someone be fired for expressing political views?

This depends on the location and the manner in which the employee conveyed their thoughts. Many states, like California, implicitly forbid any type of political discrimination. In other states, there have been few if any policies instated regarding political discrimination in the workplace.

Can a company protect itself from wrongful termination lawsuits?

The best and the first line of protection is a strong HR team that is fully aware of local and federal policies. They will help ensure your company doesn’t put itself into a compromising legal situation. You can, and most likely are required to, carry Employment Practices Liability Insurance (EPLI).