Wrongful Termination – Illegal Basis for Discharge
The employment violation known as wrongful termination occurs when an employee is terminated based on an unlawful purpose.
In some states, wrongful termination is called wrongful discharge. Unlawful termination laws come from both federal and state anti-discrimination laws and are rooted in the earlier Civil Rights Acts.
At-Will Employment Status
At-will employment status describes the situation in which an employer can terminate an employee at will, at any time, and for any reason – except if that reason is not illegal. The employee does not have a contract for employment with the employer.
It makes no difference if the employee falls under the legal category of “at-will” if the employer violates the law in terminating the employee. The same is true if the employee is protected by an employment contract.
Employee Under Contract Status
Should an employee have an employment contract, not only can the employee sue the employer for breach of the employment contract, the employee can also sue the employer for the tort of wrongful termination, if the basis for the termination was for an illegal purpose. Illegal purposes include discrimination based on race, gender, and religious beliefs. Wrongful termination can also be based on the employer’s retaliation for being a whistleblower or for the employee freely exercising their legal rights such as voting.
Where an employment contract requires termination only for cause, a terminated employee can sue the employer for arbitrary discharge the employee.
Termination For Unlawful Discrimination
The most common forms of unlawful termination based on discrimination include:
Religious beliefs
This discrimination occurs when the employer terminates the employee because of their religious beliefs. The termination usually occurs when the employer is unaware of the employee’s religious beliefs when hiring. But when discovered, the employer terminates the employee because of those religious beliefs.
Nation of origin
This discrimination occurs when the employer terminates because of the employee’s national origin, such as from the Middle East.
Gender
This discrimination occurs when the employer terminates because of the employee’s gender. Many states include transgender in this category as well.
Age
This discrimination occurs when the employer terminates because of the employee’s age. This type of discrimination is more problematic because the ability to perform one’s job performance can be adversely affected by the aging process.
Disability
This discrimination occurs when the employer terminates an employee due to an employee’s physical disability, mental, or learning disability such as dyslexia.
Race
This discrimination is the most visible because it typically appears in employers’ hiring practices. For example, an employer only hires white males and refuses to hire employees of a different race.
Ethnicity
This type of employment discrimination is the most widespread in our society. It especially appears when the employer is unaware of the employee’s ethnicity during the hiring process until the in-person interview.
Termination Violating An Important Public Policy
It is unlawful for an employer to terminate, either actually or constructively, an employee who is protected by a constitutional right if that termination violates an important public policy.
Important Public Policy
An important public policy may be violated when an employer terminates an employee for engaging in an activity that is legally protected. Such as the legal right to vote, or notify a public state or federal authority should their employer engage in illegal activity, or any act that is endangers public safety. The latter is protected by whistleblower statutes that are included in important public policy and safety federal and state legislation.
Retaliatory Termination
The Whistleblower
Retaliatory termination is an employment term in which the employer, for example, terminates an employee because the employee blew the whistle on the employer for being in violation of a federal or state law, or was terminated by the employer because the employee asserted a legal right that the employer disfavored.
Constructive Termination
Under the law, you can be actually terminated (given a pink slip) or constructively terminated. Constructive termination occurs when the employer intentionally creates or permits adverse working conditions such that an employee believes that they have no reasonable alternative but to resign. Even though the worker technically resigned, the law will interpret the resignation as a forced termination.
The Following Are Examples Of Constructive Termination
- Demoting an employee
- Denying employee promotion
- Writing-up an employee
- Denying employee benefits
- Harassing the employee
- Making verbal or physical threats
- Having an employee take unpleasant work assignments
- Reducing work days and hours
- Accusing the employee of dishonesty
Types of Damages Allowed In Wrongful Termination Cases
Depending on the state the wrongful termination case was filed, the terminated employee may be entitled to receive all or some of the following types of damages.
- Lost Pay
- Lost Benefits
- Emotional Distress
- Punitive Damages
- Attorney Fees
Examples of Retaliatory Termination:
Filing Workers Compensation Claim
Employers cannot treat employees differently because they exercise their legal right to file a workers’ compensation claim. In most jurisdictions, if an employer harasses or terminates an employee for filing a worker’s compensation claim, the employer can be liable for damages.
Other Examples Include:
- Retaliation for Reporting Sexual Harassment.
- Retaliation for Reporting Age Discrimination
- Retaliation for Reporting Racial Discrimination.
- Retaliation for Reporting for Violating Family and Medical Leave Act
Laws That Contain Whistleblower Protection Statutes
The employer terminates the employee because the employee “blew the whistle” on the employer by informing a governmental agency that the employer is committing an illegal act. The “you told on me, so your fired” motive can result in compensatory and punitive damages.
Terminating or otherwise punishing or harassing an employee in retaliation for reporting the employer to a public authority or agency for violating the laws enacted under one of the following federal acts:
- Occupational Safety and Health Act (OSHA)
- Anti-Money Laundering Act
- Asbestos Hazard Emergency Response Act
- Clean Air Act
- Environmental Response and Liability Act
- Toxic Substances Control Act
- Consumer Financial Protection Act
- Consumer Product Safety Improvement Act
- Criminal Antitrust Act
- Federal Water Pollution Control Act
- Pipeline Safety Improvement Act
- Safe Drinking Water Act
- FDA Food SafetyAffordable Care Act
- Solid Waste Disposal Act
Defamation Of Terminated Whistleblower
Suppose the employer that terminated you for being a whistleblower makes defamatory remarks about you to others, including potential employers who are interviewing you. In that case, the employer faces not only a civil action for wrongful termination but also one for defamation.
Both intentional torts allow for punitive damages against the former employer personally and are not covered by the employer’s insurance.
Many employers are cautious and act responsibly when giving a former employee a reference. Usually, they will give a benign and neutral reference, even if the former employee was a whistleblower. No matter what the former believes about the former employee’s character, defaming the employee will open the door to serious litigation.
Right To Sue Former Employer
If your former employer tells lies about you that damage your career, you can sue the employer for monetary damages.
Each state has its defamation of character laws. Generally, if your employer spreads lies about you that damage your career and future job prospects, you likely will have a strong lawsuit for defamation against your former employer.
Types of Defamation
When someone lies about you to another person, that’s called “defamation of character.” Spoken lies are called “slander,” and written or printed lies are called “libel.”
Should the former employer say that the former employer was a liar and a cheat, and it can be proved that the defamatory remarks were untrue and were made in retaliation for having reported the employer to the authorities, the job applicant stands a good chance of recovering not only compensatory damages but also punitive damages.
If someone heard your employer say something like, “I’m going to say whatever I want – I’ll make sure she never works in this town again…” As a plaintiff, you have a solid case against your employer.
Must Be Accusations of Facts Not Opinions
You might sue for defamation only if your former employer made a statement of fact, not opinion. If he tells someone you were “an unproductive employee,” that’s his opinion. But if your former employer tells someone you “stole money from the company,” that is a specific factual statement that might allow you to sue for defamation.
Statement Must Not Be True
If the statement is valid, you will lose your defamation of character lawsuit. So carefully consider whether you should take your employer to court. If there is a trial, the employer might try to show that the statement was true – further damaging your reputation.
Consult With A Wrongful Termination Lawyer
Should you have specific questions or require additional information about your legal rights and obligations, we strongly advise you to consult with a verified online Plaintiffs Employment Attorney about your specific issues as soon as possible.
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