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A Wrongful Termination: Illegal, or Just Unfair

By: Leizer Goldsmith

How do you figure out if your termination from employment is just unfair, or warrants a serious legal case? It's not an easy thing, but you can begin thinking the process through if you learn some of the basic concepts employment lawyers work with. Consider the following situation:

You've been with the company for thirty years. Your performance has always been rated outstanding. You've never before been accused of misconduct of any kind. Today is your day off.

You just heard from a coworker that the boss says you're no longer with the company. The coworker says that the boss said the company wants to “go in another direction.” Go in another direction? After thirty years and a spotless record? That must be against the law!

Don't count on it. Like most employees in the United States (even many highly-paid employees), you're probably an “employee at-will.” That's a fancy term that just means you can be fired for any reason or no reason at all, unless the reason for the firing violates a specific law or legal principle, such as the laws forbidding discrimination based on race, sex, age, disability, religion, or national origin, or the laws protecting your right to attempt to organize a labor unions or oppose unlawful discriminatory conduct by the company.

What this means is that a fired, non-unionized employee usually has a tough fight ahead in opposing an unfair firing, unless he or she can figure out and prove that the employer's real reason for the firing was specifically discriminatory, or otherwise forbidden by the law. Since few employers ever admit to unlawful discrimination or retaliation, this can be difficult, though not necessarily impossible. What is required is the process of proving your case by “inference”, which means proving it without company officials admitting that the company was discriminating.

Your apparent firing after thirty years seems like it might be age discrimination. So what should you do next? Try to get the company to tell you why you were fired. Getting the answer in writing is the best, because it provides the strongest evidence later, but at least get it orally. Many employers will present you with a termination letter as a matter of their own policy, but others will refuse, or will give you something so vague as to be meaningless. Although this information is very important to have, do not despair if you're given no information. If you can prove that you asked, the company's refusal to tell you why you lost your job might help you in a legal case down the road.

If you do get more specific information as to the reasons for your firing, start thinking right away about whether the stated reason is a lie, and if so, why. Wrongful termination cases often come down to the question of whether the employer's alleged reason for termination is truthful or a lie, and you can only begin figuring out if the reason is a lie once you've heard the reason!

For the most part, unless you work for the government, you cannot win a discrimination or other wrongful termination case just by proving that the company was wrong or mistaken in firing you. The employee must prove, at a minimum, that the employer's reason did not motivate the firing, or logically could not have motivated the firing. So, for example, if your company eventually claims that it wanted to “go in another direction” because you had stolen from the company, it would not be possible to prove age discrimination simply by conclusively proving that you did not steal. Rather, you would have to show that the company knew all along that you did not steal, or that the decision to terminate you was made before the date when the stealing was allegedly discovered by the company. In the age discrimination context, you would also typically have to show that younger workers were treated more favorably, or got your job after you were fired.

If the alleged reason for your termination was poor performance, the same principles apply. In one recent case, our firm succeeded in representing an employee who claimed that she was fired for protesting discrimination, while the company claimed she was fired in part for poor performance. We successfully disputed the company's claim by showing that the same supervisor who alleged poor performance had given our client a special raise just three weeks before she fired her, and an extra Christmas bonus a while before that. Then, the supervisor fired our client shortly after she presented the company with a letter stating that she was being discriminated against in the creation of weekly work schedules.


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