By The Ryan Law Firm

As many of us have learned in recent years, the job market is a tough place. This is a free market economy and employers generally have the right to hire and fire whoever they like, without good cause.  Contrary to popular belief, you do not have a legal right to your job.

However, the law does protect workers from certain types of discrimination and harassment.  It is unlawful for an employer to fire an employee, or take any other type of substantial adverse actions, such as failure to hire, demotion, or pay cut, based on one of the following:

●          Physical disability or medical condition
●          Age
●          Race
●          Gender
●          Whistleblowing

Employers are generally savvy enough to avoid stating one of these prohibited reasons as the official reason for termination or other adverse action.  If there is reason to believe however that the true reason for the termination was one of the legally protected categories listed above, it is important to have experienced counsel to help gather the evidence necessary to disprove the employer’s unsubstantiated basis for termination.

Individuals who have lost their job as a result of unlawful discrimination have the right to bring a lawsuit to protect their rights.  Generally speaking, they can seek monetary compensation through the courts for lost earnings, emotional distress, and attorney’s fees for violations of those rights.

Below you will find a discussion of what is - and what is not - a good wrongful termination case.

A.        BAD CASES

            Why begin the discussion with bad cases?  Because most people who are fired simply do not have a case.  The truth is that most people lose their jobs because either the employer cannot afford to pay them anymore or the employee is not doing their job well.  In either case, the law does not give the employee the right to sue.

In the first type of case where the employer lays off the worker for economic reasons (sometimes referred to as a “reduction in force”), there is no legal recourse for the displaced worker.  There is no law that requires employers to keep paying employees if they cannot afford to do so.

The second type of case, in which the employee is terminated for poor job performance, is widely recognized as good cause for termination.  But what is “poor job performance” in the eyes of the law?  Not getting along with co-workers, showing up late, too much socializing at work, or doing things differently from the way your boss wants them done may all constitute poor job performance. 

People often feel that they should not be fired because they cannot get along with some of their co-workers or bosses.  But that feeling of moral injustice should not be confused with unlawful termination.  If you are not getting along with your co-workers or supervisors, you are viewed as a problem that is taking money away from the employer’s bottom line.  Your boss or co-workers may be obnoxious, annoying, mean, or lazy, but you do not have a legal right to take your employer to court if they fire you for not getting along with them.

B.        GOOD CASES

1.         PHYSICAL DISABILITY AND MEDICAL LEAVE

Employers sometimes terminate or take other adverse actions against workers because they suffer from a physical disability or medical condition.  This scenario often arises when workers begin their employment in good condition but suffer a medical setback while they are employed and are therefore not able to do their job in the same way that they did before.

Under California’s Fair Employment and Housing Act (“FEHA”), which is similar to the federal Americans with Disabilities Act (“ADA”), it is unlawful for employers to discriminate against a worker on the basis of their physical disability or medical condition.  In such cases, the employer will often attempt to hide the fact that they were motivated to take action against the worker on the basis of their disability, and will instead try to point to other non-discriminatory reasons for their actions.  The key to winning such cases for disabled workers is to demonstrate that their disability was the true reason for their termination, and the employer’s stated reasons are nothing more than false pretense.

Under FEHA, workers who suffer from qualifying disabilities or medical conditions are entitled to reasonable accommodations.  That is to say, if they can perform their usual and customary job duties with such accommodations, they have a right to keep their job.  The employer must engage in what is known as an “interactive process” with the employee, which is generally in the form of a meeting, wherein both sides discuss how the disabled employee can be accommodated and continue to perform their job.  The law requires that all reasonable options be explored, including provision of special equipment, restructuring of schedules, modification of duties, or other common sense solutions. 

The California Family Rights Act (“CFRA”), which is similar to the federal Family Medical Leave Act (“FMLA”), guarantees workers up to 12 weeks of family or sick leave per year, provided they have been working for the employer for at least one year.  If the employer terminates the employee for taking off work due to their own medical condition or to tend to a sick family member for 12 weeks or less, the law prohibits the employer from terminating the worker for doing so.

2.         AGE DISCRIMINATION

When companies seek to reduce costs by trimming their payrolls, it often means that the workers who have worked at the company longest and have earned pay raises make desirable targets for cost-cutting layoffs.  Stated differently, firing employees based on their higher salaries and therefore seniority tends to punish older employees and favor younger ones.

This amounts to illegal age discrimination, which is prohibited under both state and federal law.  Under this law, employers are not allowed to take age into consideration when hiring or firing employees.  Employers must use age-neutral considerations, such as job performance, when making decisions on who they want to hire or fire. 

3.         RACIAL AND GENDER DISCRIMINATION

Virtually everyone is aware of that state and federal law prohibit discrimination based on race or gender.  Yet both still occur in the workplace, but in less obvious ways than in the past.  If an employer makes outright statements to the effect that they are taking action against an employee because of their race or gender, it gives rise to a relatively straightforward discrimination case.  However, those types of cases are rare. 

In most cases, employers try to find a legitimate excuse for terminating, demoting or failing to hire an employee who they disapprove of because of their race or gender.  The burden then falls upon the employee to find indirect evidence of racial or gender discrimination.  This can come in the form of testimony by other employees who were victims of similar discrimination, documents showing a pattern of prior complaints of discrimination, or other sources which reveal the employer’s true motivation. 

4.         WHISTLEBLOWING

If an employee reports unlawful activity by their employer to a governmental agency, they are referred to as “whistleblowers.”  Whistleblowing is a legally protected activity.  If an employer retaliates against the whistleblower, the employee can bring suit.  In legal terms, this is known as “wrongful termination in violation of public policy.” 

The law also protects workers who refuse to participate in unlawful acts by their employer, or who protest against such acts.  For example, if an employee witnesses a wrongful act against his co-worker and agrees to serve as a witness for that co-worker, the employer cannot retaliate against them for doing so.