If your employer has fired you in an act of discrimination or retaliation, you may have the right to take legal action and pursue financial remedies. However, sometimes it can be difficult to tell if your firing was lawful or not, as there are many perfectly legal reasons to discharge an employee in California.
Fortunately, the attorneys from Domb & Rauchwerger are here to provide all the information you need to determine if you can sue your employer. Once you’ve considered the following examples of wrongful termination, you’ll likely know if you should schedule a consultation with an attorney and move forward with a claim.
California’s Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against you because you are pregnant or recently gave birth. If you believe that your discharge was based on your pregnancy status, you may be able to sue for wrongful termination.
You may have grounds for a lawsuit if your attorney is able to prove that your firing was substantially motivated by your pregnancy. To do so, they’ll collect evidence and use it to determine if any of the following situations took place:
- You received positive performance reviews until you notified your employer that you were pregnant, after which your employer started writing you up.
- You were fired soon after you disclosed your pregnancy.
- You asked to take additional time off to bond with your baby and your employer fired you shortly thereafter.
- The reason your employer gave you for your discharge was dishonest and you believe the real reason had to do with either you being pregnant, you being disabled by your pregnancy, or you requesting to take time off to bond with your child after your child is born.
- Your boss or supervisor made verbal or written comments that expressed resentment toward your pregnancy and terminated you shortly thereafter.
If you and your attorney can find evidence that proves one or more of the situations listed above, there’s a good chance you’ll be able to sue for wrongful termination and recover compensation from your employer.
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2.Retaliation for Reporting Illegal Activity
If you reported to your employer that you believed they engaged in illegal activity, and you were terminated thereafter, you may have a claim for retaliation. First, you will need to demonstrate that you made a “protected complaint.”
Generally, a “protected complaint” is a complaint that an employee makes to their employer (or a government agency) about the employer engaging in conduct or activities that the employee reasonably believes to be illegal. It is best if your complaint to your employer is in writing, so that your attorney has a physical piece of evidence to use at trial. If not, your employer may dispute your story and claim that they were not aware of your protected complaint.
Even if it turns out that what you complained about was not actually illegal, as long as you had a reasonable belief that what you were reporting was illegal, your employer cannot fire you for making that complaint.
As an example, let’s assume that you reported to your employer that another coworker was being sexually harassed at work by a supervisor. Even if it turns out you were wrong that the activity you witnessed does not constitute sexual harassment, your employer still cannot retaliate against you for making such a complaint.
Typical signs of retaliation prior to termination consist of the following:
- Your firing occurred shortly after you made a protected complaint.
- You have a history of receiving positive performance reviews. After making a protected complaint, you receive your first negative performance review and are fired shortly thereafter.
- After you make a protected complaint to your employer, your employer issues you a disciplinary write up for three absences that you’ve had over the past year.
- Your employer made written or verbal comments that they were displeased with your decision to file a complaint.
3.Gender Identity Discrimination
California law makes it illegal for your employer to fire you because of your gender identity. If you suspect that you were discharged because of your gender identity, you may be entitled to compensation. However, you’ll need evidence to back up your claim. You’ll be able to sue if you have evidence that shows your firing was motivated by gender identity discrimination.
To prove gender identity discrimination, it can be helpful to provide evidence that shows the following:
- Your employer refuses to call you by your preferred gender pronoun.
- You undergo gender confirming surgery and notice that your employer starts to discipline you and document your alleged poor performance, resulting in your termination.
- The manager or supervisor who discharged you made discriminatory written or verbal statements about your gender identity.
4.Terminated for Taking Protected Leave
- Your employer has at least five employees.
- You were employed for at least one year before the beginning of your leave of absence.
- You worked at least 1,250 hours in the year before your leave of absence.
If the above-listed statements are true, the CFRA allows you to take leave for a number of reasons, including serious health conditions. If you were fired after requesting protected leave or upon returning to your job from a protected leave of absence, you might have grounds for a claim.
You’ll be able to sue if you and your attorney can provide evidence that proves the following:
- You submitted a request to take a protected leave of absence.
- You were fired soon after you requested a leave of absence, during your leave of absence, or after you returned from one.
- Your firing was substantially motivated by the leave of absence you took or your request to take leave.
Even if you do not qualify for CFRA leave, your employer is still required to provide you with reasonable accommodations for your disability, which could include taking time off of work because of your disability. If your employer tells you that you are not eligible to take CFRA leave and then refuses to grant you leave as a reasonable accommodation for your disability pursuant to the FEHA, contact one of our wrongful termination attorneys today.
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5.Retaliation for Reporting Sexual Harassment
State law also protects your right to report workplace sexual harassment without repercussion. If your employment was terminated after you filed a sexual harassment report or claim, you may be entitled to financial remedies. That said, you’ll need evidence to support your case if you want to sue your employer.
To file a successful wrongful termination suit if you reported sexual harassment, you’ll first need to prove that you actually reported sexual harassment. The best form of evidence to prove that you reported sexual harassment is if you have a written complaint to your employer.
Next, you’ll need to prove that you were terminated because you came forward about the harassment you experienced. Typical evidence that supports a causal connection between your harassment complaint and your termination include the following:
- You complained about sexual harassment and you were terminated shortly after.
- You had a history of positive performance reviews, but after you complained about sexual harassment, you receive your first negative performance review and then you are told the company is eliminating your position shortly thereafter.
- You received a disciplinary writeup shortly after making a sexual harassment complaint, and the incident that you are being written up for occurred six months prior. Shortly thereafter, you are terminated.
You could also use emails, written documents, testimony from co-workers, or other forms of evidence that show your firing was motivated by the sexual harassment report you filed.
The FEHA also protects you from workplace discrimination based on age. If you are above the age of 40 and suspect that you were fired because of your age, you’ll want to consult with an attorney. They’ll work with you to investigate your firing and determine if you’re eligible to sue for wrongful termination.
To support your case, your lawyer will need evidence that proves one of the following:
- You were treated differently than younger co-workers who held the same position as you.
- The reason your employer gave for your termination was dishonest.
- Your manager made negative comments about your age.
Typically the best age discrimination cases are ones where you worked for the company for a long time (starting when you were below the age of 40), and now you are 60 and your employer begins asking when you plan on retiring.
If you were hired when you were 60 and were then terminated at age 62, it will be difficult to show that your termination was motivated by your age unless you can demonstrate that the person who fired you is different than the person who hired you.
Under state law, all races are protected from race-based workplace discrimination, even races that aren’t considered to be minorities in your community.
The critical thing to look for to determine if a termination was based on race is whether the person who hired you is the same person that fired you. If you had an in-person or zoom job interview, then the person who hired you knows your race.
The presumption then is that the same person would not fire you 6 months later because of your race, because they wouldn’t have hired you in the first place if they had a discriminatory animus against your race. Therefore, one key factor in a racial termination is whether the person who fired you is different from the one who hired you. That being said, this presumption can be rebutted depending on the situation.
Another way to show that race played a role in your termination is to demonstrate that all employees of your race are treated worse by certain supervisors than those of other races.
For example, demonstrating that a supervisor allows all the caucasian employees to arrive late without repercussion, but writes up every African American employee who is late by even a minute. While technically you should not be late to work, if you can demonstrate that only your race is written up for being late, you may be able to demonstrate that your termination is substantially motivated by your race.
Find Out If You Can Sue for Wrongful Termination
Whether you’ve been fired for taking protected medical leave or identifying with a particular gender, you’ll need hard evidence to file a wrongful termination claim. Luckily, a wrongful termination lawyer can collect, and present, evidence that shows your firing was motivated by an unlawful reason.
Contact the team at Domb & Rauchwerger today to schedule a free consultation and learn more about the legal process. An experienced attorney from our team will ask you about your discharge and determine if you can sue for wrongful termination.