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Wrongful Termination Lawyer

Losing your job can be a highly stressful and frustrating situation, and, unfortunately, there are many different reasons why it can happen.  Perhaps an employer is forced to cut back on staff due to an economic downturn.  Or maybe an employee can’t manage to meet performance objectives.  Sometimes, it’s something petty like a supervisor who just doesn’t like a certain employee.  Sometimes, the employer doesn’t provide any reason at all.

For workers, job losses are the most frustrating when they are perceived as unjustified.  After all, if an employee hasn’t done anything wrong other than perhaps getting on the wrong side of a supervisor, it seems unfair that the employee has to find a new job.  And it very well may be unfair in principle.  However, “unfair termination” is not a legal claim recognized by the law.  To state a valid claim for wrongful termination, an employee must have been terminated in violation of some legal or contractual right.

Employment At-Will


Under the American employment law system, wrongful termination claims must be based upon some exception to what is known as the “employment at-will doctrine.”  “At-will employment” is the idea that the employment relationship between a worker and an employer is entirely voluntary and can last as long, or as briefly, as the employer and employee please.  This means the employer can fire the employee – and the employee can quit – without notice, at any time, for any reason at all, or for no good reason.  “Two weeks’ notice,” while a considerate courtesy when provided by either party, is by no means required absent some independent contractual obligation.

The employment at-will doctrine is rooted in the historic common law and is the default position of the vast majority of jurisdictions in the United States.  Interestingly, the Montana legislature, like several European countries, has enacted a statute providing that, after an employee completes an initial probationary period, termination may only occur “with cause.”  In the other 49 states, though, employment at-will is the law of the land.

If at-will employment were the entire story, there would be no such thing as wrongful termination claims.  Fortunately for workers, though, Congress, along with many state legislatures, has enacted multiple exceptions to the at-will employment doctrine.  The exceptions protect workers belonging to certain “protected classes” or engaging in certain “protected activities.”  Generally, wrongful termination claims arise when an employer fires an employee due to the employee’s membership in a protected class or involvement in a protected activity.   This article will focus primarily on the statutorily protected classes and activities upon which wrongful termination claims are derived under federal law, but first we’ll briefly look at another exception to the at-will employment doctrine rooted in contract law.

Wrongful Termination as Breach of Contract

As noted above, at-will employment is the default position, but that does not mean that employers and workers cannot agree that the employment relationship is not at-will.  Employment contracts and collective bargaining agreements can provide additional job security by defining the duration of the employment relationship or by setting forth specific, limited reasons for which an employee can be terminated.  If the employer fires the employee for an impermissible reason, or prior to the end of the agreed term of employment, the employee may be able to assert a wrongful termination claim under a theory of breach of contract.  Of course, just because an employment agreement is written does not mean the employment relationship is not at-will.  Many written employment agreements expressly state that employment is at-will, though a statement to that effect alone is not necessarily decisive if other conflicting provisions suggest otherwise.

A collective bargaining agreement (“CBA”) negotiated by a union can also overcome the presumption that all employment is at-will by establishing certain measures, such as written warnings and improvement plans, that the employer must take prior to terminating an employee.  If a worker is fired without the employer following the agreed protocol, the worker might have a claim for wrongful termination.  A CBA will also usually spell out procedures that an employee must go through prior to filing a wrongful termination suit, including union grievances and arbitration.  So, it is a good idea for an aggrieved employee to speak with a union representative or an attorney prior to asserting a claim for wrongful termination in violation of a CBA.

In certain situations, even in the absence of a written employment agreement, a court may find that an employer and employee have entered into an “implied contract” of employment.  An implied contract is an agreement arising from conduct or representations suggesting that the parties intended to enter into a contract, even though they may not have formally set it down on paper.  If an employee can establish that an employer made a definite promise about the nature of the employment, and then broke that promise, the employee may be able to argue that the employment relationship was no longer “at-will,” at least with regard to the specific promise made by the employer.

As an example, let’s say a company wants to hire a worker and verbally promises to employ her for two years if she will take the job.  Relying upon that promise, the worker leaves another job and begins working for the company.  But, after only one year, the company decides to terminate the employment relationship without cause.  Even if no written employment agreement exists, a court might find that the company and worker entered into an implied contract for a two-year employment period.  By terminating the employment relationship prior to the end of the term, the company broke a promise that the worker had relied upon.  As a result, she might be able to assert a wrongful termination claim based upon breach of an implied contract.

Because disputes often arise over what was and was not promised by an employer, implied contracts can be difficult to prove.  Some courts have held that employment manuals or handbooks, if distributed to and relied upon by employees, can create an implied contract.  If, for example, a manual defines the reasons for which an employee can be terminated, and the employer fires the employee for a different reason, a wrongful termination claim may be available under an implied contract theory.  Whether an employment manual creates an implied contract depends in large part on the content of the manual and how it is distributed and enforced by the employer.

The determination as to whether an implied contract exists based upon employer representations depends greatly upon the specific facts of the case.  Moreover, different states have differing standards when it comes to what is necessary to establish an implied contract, so a court in one state may find an implied contract based upon facts which would not create an implied contract in another state.  As with most legal issues, an employee who believes an employer has breached an implied employment contract should consult with a knowledgeable attorney.

Protected Classes

Beginning with the Civil Rights Act of 1964, Congress begin carving out certain statutory exceptions to the at-will employment doctrine.  Effectively, Congress said that employers can fire at-will employees at any time for any reason, just as long as the reason is not a prohibited one.   The specific characteristics that cannot form the basis of an adverse employment action are referred to as “protected classes.” For purposes of wrongful termination claims, that means that an employee’s membership in a protected class cannot be the reason that the employer fires the employee.

Different protected classes have been established by numerous federal and state statutes, which sometimes overlap.  We will primarily focus on the federal law, but it is important to remember that, although state statutes can provide greater protections to workers, they cannot take away any protections provided on the federal level.

Civil Rights Act of 1964

The Civil Rights Act of 1964, at Title VII, prohibits employers with at least fifteen employees from engaging in discrimination in employment decisions based upon race, color, national origin, sex, and religion.  Each of those categories forms a different protected class.  So, if an employer terminates an employee based upon the employee’s status in any protected class, the employer violates the Civil Rights Act, and the employee can assert a claim for wrongful termination.  Several states have also enacted laws recognizing additional protected categories, such as sexual orientation and gender identity, though those categories are not recognized in all states.  There is some variance in the standards applicable to each protected class, so we will look at each individually.

Race

Under the Civil Rights Act, unlawful racial discrimination occurs when an employer makes adverse decisions based upon an employee’s or applicant’s race.  The Act applies not only to the employee’s race itself, but also to any traits associated with a specific race, even if not every member of the race has the trait.  Similarly, the Civil Rights Act prohibits employers from taking adverse actions based upon racial stereotypes.

Racial discrimination can also include adverse actions relating to an employee’s association with a racial advocacy group or with members of another race.     Thus, if an employer fires an employee because he or she is involved in an interracial marriage, the employee would be able to assert a claim for wrongful termination under the Civil Rights Act.  Likewise, an employer who fires an employee for being involved with the NAACP would also be subject to a wrongful termination claim.

Color

Often associated with racial discrimination, employment discrimination based upon color refers to adverse actions taken due to the pigmentation of an employee’s skin.  As a result, color discrimination can occur between members of the same racial group.  So, for example, if an employer who is a member of the same racial group as an employee fires the employee because his or her skin is too light or too dark, the employee will have a claim for color discrimination.

 

National Origin

An individual’s “national origin,” under the Civil Rights Act, includes not only the person’s place of birth, but also his or her ethnicity, last name, accent, and choice of language.  Depending upon the nature of the business, some employers can require their employees to speak English fluently.  However, an employer who terminates an employee for speaking another language at home, or for speaking with an accent, may face a wrongful termination claim for discrimination based upon national origin.

Religion

The Civil Rights Act’s prohibition on religious discrimination in employment prohibits adverse employment actions arising from an employee’s religious beliefs and practices, or lack of religious belief or practices, or from the employee’s affiliation with a religious group.  Courts have interpreted “religion” broadly to include not only traditional religious groups, but also moral or ethical beliefs about “ultimate ideas,” as long as the beliefs are sincerely held.  Political, social, or economic beliefs, though, are not protected under the Civil Rights Act’s definition of religion.

Religious practices which may not be considered in employment decisions include praying, attending (or not attending) worship services, and wearing religious clothing or jewelry.  As with disabled employees, discussed below, employers are required to provide “reasonable accommodations” to religious employees, as long as the accommodation is not unduly burdensome on the employer’s business.  Permitting religious employees to pray during break times, providing flexibility in scheduling to allow for attendance at religious services, or making an exception to an office dress code allowing an employee to wear clothing associated with the employee’s religion could all be examples of reasonable accommodations.

An employer that terminates an employee for being a member of an unpopular religion or church, or for wearing a hijab, would be subject to a claim for wrongful termination under the Civil Rights Act.  However, the prohibition against religious discrimination in employment includes an exception for organizations and educational institutions which are primarily religious in nature.  So, a Catholic school that terminates an employee involved in religious instruction for being an atheist might not violate the Civil Rights Act.

Sex

Employment discrimination based upon an employee’s biological sex, which encompasses sexual harassment and hostile work environment claims, is also prohibited by the Civil Rights Act.  Wrongful termination based upon sexual discrimination can include not only firing an employee due to his or her sex, but also firing an employee in retaliation for refusing sexual advances, or for reporting or refusing to tolerate sexual harassment suffered by a fellow employee.  Sexual discrimination can occur between a supervisor and employee of the same sex, but courts have declined to extend the Civil Rights Act’s protection to sexual orientation or gender identity, though those categories are protected by the laws of some states.

Bona fide Occupational Qualification

A very limited exception allowing discrimination against protected classes in employment decisions is permitted when the employee’s membership in a specific class is considered a “bona fide occupational qualification” (“BFOQ”).  For the exception to apply, the BFOQ must relate directly to the performance of the employee’s job and the central mission of the business, and no less restrictive reasonable alternative can be available.  The most commonly cited example of a BFOQ defense is a theatre or film producer considering a character’s sex or race in making casting decisions.

Generally, the BFOQ defense is raised in hiring decisions, such as a modeling agency that only hires men to model men’s clothing.  In the wrongful termination context, the BFOQ defense could be applicable if an employee’s class membership changes.  For example, a bookstore specializing in books of a specific religion might be able to assert a BFOQ defense if it terminates an employee who converts to a different religion, though the success of the defense would depend upon the employee’s specific job duties.

Disparate Impact

Wrongful termination claims arising from intentional discrimination are a fairly cut and dry matter.  If an employer fires an employee due to the employee’s race, color, national origin, religion, or sex, the employer violates the Civil Rights Act.  Things get a little murkier when an employer has a policy which, though neutral on its face, ultimately results in disproportionately harming employees belonging to a protected class.  In “disparate impact” cases, the employer usually did not intend to discriminate, but the results might look the same if it had.

A wrongful termination claim brought under a disparate impact theory might look something like this:  An employer implements a policy requiring employees, as a condition of continued employment, to pass annual examinations based upon written educational materials distributed by the employer.  Employees scoring below a certain level are laid off.  However, due to the nature of the written materials, employees who are not native English speakers tend to receive lower scores.  And, as a result, a disproportionate number of employees who are immigrants lose their jobs.

If a claimant in this scenario established that the employer’s policy, even though unintentional, had a disparate impact on employees based upon their national origin, the claimant would have met the initial burden of proceeding on a disparate impact claim.  The burden would then shift to the employer to demonstrate that the policy is related to the job functions of the employee’s position and that the policy is a matter of business necessity.  If the employer can establish both requirements, it will be successful in its defense.  But, if not, the employee would prevail on a disparate impact claim for wrongful termination based upon national origin discrimination under the Civil Rights Act.  Needless to say, disparate impact cases can be immensely complicated, often requiring statistical analysis by multiple experts.

 

Title VII of the Civil Rights Act is enforced by the Equal Employment Opportunity Commission (“EEOC”), along with the Departments of Labor and Justice.  Employees who have been wrongfully terminated as a result of unlawful discrimination are also permitted to file private civil lawsuits against their employers, though it may be necessary to meet some procedural requirements beforehand.  Successful litigants can recover back pay, reinstatement, attorney’s fees and costs.  In addition to lost wages, back pay can include the value of fringe benefits the employee would have enjoyed if not for the discriminatory termination.  In cases involving intentional discrimination, claimants can also recover compensatory and punitive damages, though the amount of these damages is capped based upon the size of the employer.

Pregnancy Discrimination Act (“PDA”)

In 1978 Congress amended the Civil Rights Act by passing the Pregnancy Discrimination Act (“PDA”), which prohibits sex discrimination based upon a person’s being pregnant or having an intention to become pregnant.  The PDA was passed in response to a Supreme Court decision holding that discrimination against a pregnant woman due to her pregnancy did not qualify as discrimination based upon sex under the Civil Rights Act.  In passing the PDA, Congress established pregnant workers, or workers planning to become pregnant, as a new protected class shielded against discrimination under the Civil Rights Act.

If an employee is fired for being pregnant, she has a claim for wrongful termination against her employer.  Under the PDA, employers are required to provide reasonable accommodations to pregnant employees to allow them to continue employment.   Accommodations can include light duty, flexible scheduling, and regular breaks.  Essentially, pregnancy is treated like a short-term disability under the Americans with Disabilities Act, which we will review below.

Americans with Disabilities Act (“ADA”)

In 1990, Congress created a protected class for individuals with disabilities by passing the Americans with Disabilities Act (“ADA”).  The ADA protects disabled persons from discrimination in public accommodations, transportation, government services, telecommunications, and, most importantly for our purposes, employment.  In the employment realm, the ADA prohibits employers with at least 15 employees from discriminating against employees or job applicants who have a mental or physical impairment that substantially limits major life functions.  Similar to the Civil Rights Act, the ADA also prohibits discrimination against employees based upon association with a disabled person.

If a disabled worker has the necessary job qualifications and can perform the essential job functions with or without reasonable accommodation, the worker is within the ADA’s protected class for disabled person.  An employer who fires an employee because the employee has an impairment, or because the employee associates with another person who is impaired, violates the ADA, and may face a claim for wrongful termination.  Predictably, there has been extensive litigation in the nearly thirty years since the ADA was enacted over what qualifies as an “impairment”, and, therefore, who falls within the ADA’s protected class.

What is an Impairment?

Stated broadly, an “impairment” is a mental or physical condition which substantially limits the worker’s major life functions.  Impairments include physical conditions, like a lost limb or cosmetic disfigurement, and mental conditions, like a learning disability or mental health disorder.  Non-disabling physical characteristics such as height (as long as not resulting from another condition) are not protected; nor are personality traits such as shyness (again, as long as the trait is not related to a separate impairment).  In some situations, temporary disabilities meet the definition, as long as the disability is sufficiently severe and the impairment continues for an adequate duration.

The protected class established by the ADA also includes individuals with a history of an impairment, even if it is not currently affecting the person.  Substance abuse problems and alcoholism can count as an impairment, though the ADA’s protections are limited to individuals in recovery, and conditions which tend to cause unlawful conduct are exempted.  Thus, an employer cannot terminate an employee because he or she has a history of alcoholism, but employers are not required to continue employing alcoholics who are actively drinking.

To qualify as an “impairment,” the condition must substantially limit at least one major life function.  “Life functions” are interpreted broadly, including physical processes and activities like eating or standing, along with mental activities like thinking, concentrating, or social interaction. Only one major life function need be affected for a condition to be an “impairment.”  Whether a certain condition limits a major life activity can vary from person to person depending upon the nature, duration, and severity of the condition.  As a result, a condition that qualifies as an “impairment” for one person might not for another person with the same condition.

In determining whether a person is impaired, courts measure the effect of the condition in question prior to any remedial measures.  So, for example, if an employee has a vision disability, whether the condition counts as an impairment subject to the ADA would be evaluated without factoring in corrective lenses.  In the work environment, though, employers are required to make “reasonable accommodations,” if necessary, designed to allow an impaired employee to perform the essential job functions.  As long as the employee can perform the essential job functions with reasonable accommodations that are not overly burdensome on the employer, any adverse action based upon an employee’s disability, up to and including termination, violates the ADA.

As with the Civil Rights Act, the ADA is primarily enforced by the EEOC, and complaints can be filed with the EEOC and state human rights agencies.  Employees wrongfully terminated in violation of the ADA can be awarded reinstatement, back pay, and attorney’s fees.  Depending upon the nature of the violation, compensatory and punitive damages are also sometimes available.

Age Discrimination in Employment Act (“ADEA”)

Passed in 1967, the Age Discrimination in Employment Act (“ADEA”) established a protected class for workers over the age of 40.  Under the ADEA, workers over age 40 cannot be discriminated against in employment based upon their age.  The ADEA applies to employers with at least 20 employees, rather than the fifteen-employee threshold under the Civil Rights Act and ADA.

To prevail under the ADEA, a claimant must be over 40 and must have been discriminated against in favor of younger employees. Notably, the ADEA does not prohibit favorable treatment for older employees, even if the aggrieved, younger employee is within the age 40+ class.  So, a 45-year-old worker who is subject to an adverse employment decision because he is younger than another employee would not be protected by the ADEA.  The ADEA does not prevent employers from offering incentives for early retirement, but mandatory retirement is generally prohibited except in a few narrow exceptions, such as for executives in policy-making positions who will be provided with a pension upon retirement.

As with the Civil Rights Act, in very limited situations the BFOQ defense is available under the ADEA.  The defense can apply to casting decisions for younger characters and to high-risk occupations, such as pilots, in which, for example, slowed reflexes with age could present a safety hazard.

Like most other federal statutes creating protected classed, the ADEA is enforced by the EEOC.  Successful claimants can be awarded back pay, reinstatement, attorney’s fees, and, in certain cases, compensatory and punitive damages depending upon the nature of the case.

Protected Activities

Similarly to protected classes, protected activities are exceptions to the at-will employment doctrine and are usually created by statute.  Statutes establishing protected activities prohibit employers from terminating or taking other adverse action against an employee based upon the employee’s involvement in a protected activity.  For the most part, the creation of a protected activity is a recognition by the legislature that it is beneficial to society for workers to engage in certain conduct, and, therefore, employers should not be allowed to punish employees who engage in activities that promote the societal good.

On the state and federal level, there are numerous laws recognizing protected activities involving a wide variety of subject matter.  Whistle-blower protections, which are usually statutory but are also recognized in some states’ common law regimes, are probably the most frequently cited.

Whistle-Blower Laws

Whistle-blower protections are designed to encourage employees to report unlawful or unsafe activities or misconduct by protecting reporting employees from employer retaliation.  The idea is that an employee is more likely to “blow the whistle” on an employer’s nefarious conduct if the employee knows he or she will not suffer any recriminations as a result of doing so.

Whistleblower laws protect workers in a considerable variety of situations.  There are too many to address every whistleblower law in this article, but a few scenarios stand out as particularly noteworthy.  Employees who report violations of environmental laws or regulations are protected under the Clean Air Act and Safe Drinking Water Act.  Several transportation statutes protect employees reporting safety violations in aviation, navigation, and among other common carriers.  The Sarbanes-Oxley Act and Dodd-Frank Act protect employees that blow the whistle on varying forms of commercial or financial malfeasance. And the Whistleblower Protection Act protects federal employees who report government misconduct.

Importantly, whistleblower laws are not uniform in defining to whom an employee must report misconduct to qualify as a whistleblower.  Many laws and regulations involving hazardous or illegal working conditions provide for reporting of violations to the Occupational Safety and Health Administration (“OSHA”).  In turn, OSHA regulations provide protections for employees who report such violations.  The OSHA regulations cover over twenty different federal statutes, though, and the reporting standards can vary from law to law.

Some statutes require employees to report misconduct to a specific federal agency to be protected, but some protect workers who report misconduct internally.  The U.S. Supreme Court recently held that an employee who reports financial misconduct internally, but not to the Securities Exchange Commission, does not qualify for whistleblower protection under the Sarbanes-Oxley Act, but is protected by the Dodd-Frank Act.

Wrongful termination claims arise under whistleblower laws when an employee is fired who has reported misconduct that is subject to whistleblower protections, and the reason for the termination is the employee’s report. The employee must have genuinely believed that the employer was engaged in misconduct.  However, in many cases, the protections still apply even if the employer ends up not having actually broken any laws.

The considerable differences among the various whistleblower statutes are important because an employee who does not meet a specific statute’s definition of “whistleblower,” or who does not follow the law’s procedural requirements, will not be protected if fired in retaliation for reporting.  Consequently, any worker who believes he or she has been fired for whistleblowing should consult with an experienced attorney as soon as possible.

Other Protected Activities

In addition to whistleblowing, U.S. law recognizes multiple other protected activities that can not be the basis of an employer’s decision to terminate an employee.  As with whistleblowing, the protected activities are intended to promote conduct that the legislature views as good for society.  The Family Medical Leave Act (“FMLA”), for example, prohibits termination due to an employee’s taking FMLA leave, including maternity or paternity leave or leave taken for substance abuse rehabilitation.  For the FMLA to apply, the employer must have at least 50 employees, and the employee must have worked for the employer for at least one year.

Congress promotes and protects military service through the Uniformed Service Employment and Reemployment Rights Act (“USERRA”), which prohibits termination or other discrimination against employees due to military service, including taking military leave.  USERRA also restricts termination of servicemembers returning to work after taking military leave.  Upon their return, veterans cannot be discharged for a period of one year, unless the termination is for cause.

Union affiliation is one of the oldest statutorily protected activities.  Passed in 1935, the National Labor Relations Act (“NLRA”) makes it unlawful for an employer to retaliate against an employee for joining a union, attempting to organize a union, and engaging in other collective-bargaining related activities. An employee who is fired for engaging in union activities protected by the NLRA can assert a wrongful termination claim against his or her employer.

Public Policy

A final category of protected activities includes those which have been recognized by state courts on public policy grounds under the common law.  Because state law varies considerably from state to state, public policy-protected activities are not uniform throughout the country.  An activity found to be protected on policy grounds in one state might not be protected in another.  Or, an activity might be protected by statute in one state and under the common law in another.

Typically, a protected activity found under public policy will be rooted in state statutes which, although not explicitly prohibiting adverse employment actions, express the policy preferences of the legislature.  For example, a state workers compensation law that does not specifically prohibit termination of employees in retaliation for filing a claim might nonetheless influence a court to find that filing a workers’ comp claim is a protected activity.  As a result, a worker fired in retaliation for filing a workers’ comp claim might be able to pursue a wrongful termination action against his or her former employer.

Public policy has been found to protect workers from retaliation for missing work due to jury service or voting, or for a worker’s refusal to engage in illegal activities.  To prevail on a claim for wrongful termination on public policy grounds, a terminated employee must show that a clear and compelling public policy exists in the state and that the employee was fired for engaging in an activity that promotes or is protected by that policy.

 

Pursuing a Wrongful Termination Claim

As we have seen, wrongful termination claims can arise under multiple different laws and legal theories, each with its own unique requirements and nuances.  Depending upon the theory asserted, some wrongful termination claims are filed with administrative agencies, and some are filed directly in federal or state court.  The applicable statute of limitations also depends upon the theory asserted, with limitations periods for wrongful termination claims tending to be fairly short.  The damage awards available to successful claimants can include reinstatement, back and front pay, seniority and benefits retroactive to the wrongful termination, attorney’s fees and costs, and, if an intent to discriminate is present, compensatory or punitive damages.

Because of the complex nature of employment law in general, and wrongful termination claims specifically, anyone who believes he or she has been wrongfully terminated should consult with a lawyer experienced in employment law without delay.  A qualified attorney can provide advice as to whether a valid claim is present, and, if so, under what legal theory or theories it should be pursued.  If legal action is appropriate, a good lawyer will ensure that all procedural requirements are followed, that the complaint is filed with the appropriate court or agency, and that it is filed within the applicable statute of limitations.

Likewise, an employer facing a claim of wrongful termination asserted by a former employee should consult with counsel as soon as possible.  An experienced attorney will be able to objectively evaluate the merits of the case and either assert all available defenses or assist in resolving the claim as efficiently as possible.  In many cases, it is in the best interests of all parties to negotiate a voluntary resolution before any formal legal action is undertaken.

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Our Memphis unlawful termination attorney professionals at The Crone Law Firm have represented clients from around the country as well as from the Memphis, Tennessee area in wrongful termination disputes.

We are prepared to meet the wishes of our wrongful termination clients in this regard. Learn more about Wrongful Termination Laws in Memphis Tennessee by contacting  The Crone Law Firm – Employee Rights Lawyer, Alan Crone –  901-737-7740.