Were You Wrongfully Terminated?

“At-will” employment in California means that a company does not need a reason to terminate employment, except that the reason may not be based on discrimination or retaliation. In other words, a “wrongful termination” is where the company’s true reason for termination is either rooted in discrimination (who you are) or retaliation (what you did). Employees may prove the true reason through direct and/or circumstantial evidence.

Basis Of Termination. The company’s true termination reason is DISCRIMINATION and/or RETALIATION.
 

1. A. Discrimination (Protected Class – i.e., Who You Are). “Substantial motivating reason” for the company’s termination decision was based on the employee’s PROTECTED CLASS.
• Age (40+)
• Criminal History
• Disability
• Medical leave for serious health condition of employee/family (CFRA)
• Gender identity/expression
• Medical condition
• Military/veteran status
• National Origin
• Pregnancy, Childbirth, Breastfeeding-related medical conditions
• Race/Color
• Religion
• Sex/Gender
• Sexual Orientation
2. B. Retaliation (Protected Conduct – i.e., What You Did). “Contributing factor” in the company’s termination decision was based on the employee’s PROTECTED CONDUCT.
• Complained about company’s illegal conduct (“whistleblowing”), including:
1. Company violating any federal, state, or local law or regulation
2. Discriminatory or hostile workplace based on a protected class
3. Workplace safety violations
• Reported wage-and-hour violations, including:
1. Unpaid wages, including overtime, commission, and bonuses
2. Missed, late, interrupted breaks
3. Late payment of wages
4. Paid sick leave
• Requested or used leave or accommodation, including:
1. Medical leave for serious health condition of employee/family
2. Disability-related leave or accommodation
3. Pregnancy-related leave or accommodation
4. Religious-related leave or accommodation
5. Bereavement leave
6. Jury duty leave

Proving The Termination Was Based On Discrimination or Retaliation. Proving the true reason for the termination was discrimination or retaliation is done through DIRECT and/or CIRCUMSTANTIAL evidence.
 

• A. Direct Evidence. Showing that the company’s stated reason is either discrimination or retaliation.
• Explicit statements
• Written admissions
• B. Circumstantial Evidence (Pretext). Showing that the company’s stated reason for termination is just a thinly veiled cover-up for either discrimination or retaliation.
• “Stated reasons” for termination are suspect, including:
1. Giving provably false reasons for termination
2. Giving shifting reasons for termination
3. Absence of corroborating documentation
4. Failing to warn employee when others were warned
5. Viewing subjective performance criticism with skepticism
6. Using euphemisms to disguise bias
7. Showing satisfactory job performance
• How employee was treated compared to others, including:
1. Comparing similarly situated employees
2. Ranking employees based on bias
3. Company collecting data on protected class
• Procedural irregularities in the termination decision process, including:
1. Timing of termination vis-à-vis protected conduct
2. Deviation from policies and practices when terminating
3. Excluding employee from relevant meetings
4. Disappearing evidence
5. Failing to investigate
6. “Me too” evidence of culture of bias
7. Seeking a release of claims and non-disparagement from employee