At Will Employment and Wrongful Termination

If you are like the vast majority of workers in the United States and in California, you are an employee “at will.” This simply means that your employer may terminate your employment for any reason or no reason, as long as it’s not an illegal reason. Again, an employer can be completely arbitrary in choosing who to fire, and he can simply pull one name out of the list, and decide to terminate his/her employment. 

Termination may be wrongful, however, if it can be shown that the reason why any given worker was terminated was unlawful/illegal. Termination is unlawful if a member of a protected class was terminated from his job position because of being a member of that protected class. Sex, race, disability, gender, sexual orientation and religion are the most common discrimination claims in California among workers, students, and other aggrieved individuals.  

Employment Discrimination may be proven directly or circumstantially. Direct proof of unlawful discrimination requires a testimony of a witness (any third person) as to hearing or otherwise witnessing discriminatory conduct. For example, a co-worker might overhear his boss using the “n” word in the presence of, or towards, an African American worker, who later files discrimination complaint.  Circumstantial proof is a little more tricky. It requires investigation of all facts and circumstances of the environment where a person works to determine whether the employment practices in place are such that they inevitably cause disparate treatment of a protected class of employees. Thus, if an employer imposes a requirement that every new secretary should be able to bench press 150 lbs without any rational reason to have such a requirement considering the nature of the job, this is likely to be a significant evidence of employer’s attempt to prevent women  from applying or getting the position of a secretary on site. 

Discrimination claims are generally hard to prove because they usually come down to proving intent to discriminate (except in disability discrimination and failure to accommodate claims, where the intent to discriminate on the part of the employer is for the most part irrelevant). Often, there are no witnesses to discriminatory conduct, or some witnesses are unwilling to testify against their own employer.

In other cases, finding out whether an employer didn’t treat his employee well or even terminated other employees for similar discriminatory reasons is well worth the effort. With careful investigation of facts, interviewing all the available witnesses who are willing to cooperate and looking at the history of the company’s work and internal procedures, unlawful employment practices such as discrimination may surface and be proven at or before trial. Arkady Itkin, Esq.