What Is Employment Litigation?

Litigation is the process of resolving disputes through the legal system. Employment litigation involves legal disputes related to employment issues. Common types of employment litigation include contract disputes, employment discrimination, wage and hour issues, and wrongful termination. Litigation is generally the last resort to resolve employment disputes when other methods don’t work.

An employment litigation attorney can guide you through the legal process, from filing a complaint to going through trial. However, even after filing an employment lawsuit, most cases are resolved through a settlement instead of going to trial. If you have an employment issue, contact a local employment litigation attorney for legal advice.

Wrongful Termination Lawsuits

Most states have at-will employment laws that give employers the right to fire workers for virtually any reason — or no reason at all. However, state and federal laws prohibit adverse employment action for protected characteristics and protected workplace activities. If an employer fires you for an illegal reason, you can take legal action. Types of wrongful termination litigation involve:

1. Employment contract violations. Contracts should lay out the terms of employment and explain when an employer can terminate the employee. Contracts may include arbitration clauses, non-compete agreements, non-disclosure agreements, and other provisions that should be legally reviewed upfront. If the employer violates the employment agreement, you can sue for breach of contract, and vice versa.
2. Anti-discrimination laws. State and federal discrimination laws prohibit employers from terminating people because of their race, sex, religion, or other protected characteristics. If an employer takes adverse action based on your protected status, you can file a discrimination claim.
3. Whistleblower protections. Employers cannot terminate a worker as retaliation for blowing the whistle on illegal conduct. Employers cannot fire or punish workers for reporting safety violations, discrimination, or a hostile work environment.
4. Public policy. Certain public policies prevent employers from firing someone. For example, most states prohibit termination because the employee refuses to break the law.

If you suffered wrongful termination, you could recover back pay and lost employee benefits. In some cases, you may want your old job back. You might also receive compensatory damages for things like emotional distress. In some cases, you can also get punitive damages or attorney fees.

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Employment Discrimination Lawsuits

Both federal and state laws prohibit discrimination in employment based on protected characteristics. Under these laws, an employer cannot discriminate when taking an adverse employment action. Adverse employment actions include:

• Termination
• Layoff
• Denied promotions
• Demotions
• Lower pay
• Loss of employee benefits
• Denied training opportunities

Race Discrimination

Race is a protected characteristic. Employers cannot consider race when taking a negative employment action. Anti-discrimination laws apply to all races. Perceived racial discrimination is also prohibited, even if the employer is wrong about the worker’s race.

Sex Discrimination

No employer can discriminate based on sex. Sex discrimination includes pregnancy, gender identity, and sexual orientation. In some cases, discrimination based on sex is acceptable if a particular sex is necessary for the job. For example, a playwright might be casting the role of a father in a play, so they can consider only hiring men. However, if a job is gender-neutral, the employer cannot base decisions on the applicant’s sex.

In the 2020 case, Bostock v. Clayton County, the U.S. Supreme Court ruled that Title VII, the federal civil rights anti-discrimination law, protects sexual orientation and gender identity. Many states have already prohibited this discrimination, but now protection extends nationwide.

Disability Discrimination

The Americans with Disabilities Act (ADA) prevents employers from treating employees or applicants negatively because of physical or mental disabilities. This disability discrimination law also protects workers who have a close relationship with a disabled person, such as a spouse.

This prohibition applies during job interviews, training, and employment. Most employers must offer a reasonable accommodation to allow disabled workers to do their jobs. For example, visually impaired workers might need special training materials created so they can gain the benefit of any training.

Age Discrimination

Various laws, including the Age Discrimination in Employment Act (ADEA), outlaw age discrimination. Under federal law, only workers over age 40 are protected. So it is not illegal to discriminate against someone for being too young. Many state laws for age discrimination apply to all workers, even those under 40.

Age discrimination law does not guarantee that employers hire the most experienced applicant. Employers can consider many factors, such as more up-to-date training or skills, which might favor younger workers. As with other forms of discrimination, sometimes a job requires a younger person. A movie producer looking to cast the role of a 12-year-old girl in a film has not committed employment discrimination by refusing to consider 40-year-old actors.

Other Protected Characteristics

Other protected characteristics under federal law include:

• National origin
• Genetic information

Many states offer broader protections than federal laws. Some states, for example, consider the following as protected characteristics:

• Military service
• Marital status
• Political opinion
• Religion

Consult a local employment attorney to review what characteristics your state and local laws protect. An attorney can advise you on bringing a lawsuit or filing a claim with a government agency. The U.S. Equal Employment Opportunity Commission (EEOC) handles most employment discrimination cases. Employees can also go through their state worker protection agency.

Disparate Impact Discrimination Lawsuits

Not all discrimination claims involve intentional discrimination. Instead, an employer might have policies or regulations on the books which appear neutral on their face. However, these laws disproportionately affect one protected class of people more than others.

For example, an employer might require that workers be able to lift 100 pounds. This requirement will likely exclude more women than men from consideration and more older workers than younger ones. This disparate impact could make the policy illegal. Nevertheless, a policy that creates a disparate impact is still lawful if job related and consistent with business necessity.

Workplace Harassment Lawsuits

Harassment is a form of workplace discrimination prohibited under state and federal laws. Harassment can focus on any protected characteristic, though sexual harassment is the most common. A worker can bring a lawsuit if harassing conduct creates a hostile workplace. Examples of harassment include:

• Slurs or epithets
• Name-calling
• Insults
• Jokes
• Mockery
• Insulting imagery
• Assault

How much harassing conduct is too much? It depends. Although one instance of physical assault is probably enough to make a workplace hostile, one joke or slur by itself probably isn’t. However, harassing conduct becomes so cumulative that a worker has a valid harassment lawsuit.

Sexual Harassment

Sexual harassment can involve a hostile workplace or quid pro quo. With quid pro quo, an employer offers a reward or threatens punishment if the employee doesn’t consent to sexual relations. Any sex can be a victim of sexual harassment, and their harasser can be someone of the same sex.

Sexual harassment might also not be about sexual attraction at all. For example, someone who constantly belittles women as a class, calling them less intelligent than men, creates a hostile workplace even though these comments are not based on attraction.

Reasonable Accommodations: Disability and Religion

Anti-discrimination law requires that employers approve reasonable accommodations so disabled workers can do a job and religious workers can continue to practice their religion. For example, a worker in a wheelchair might need an elevated desk to accommodate their chair. A person who wears headwear for religious reasons might request that an employer create an exception to their “no hats at work” rule.

Employers must grant requests for accommodation unless doing so creates an undue hardship. For example, an employer does not need to move to a new building just so a disabled employee can work there.

Whistleblowers and Retaliation Claims

Whistleblowers bring attention to illegal activity or violations by their employers. These individuals refuse to help an employer break a regulation or law, or they blow the whistle on violations by reporting them to government agencies or the media.

Retaliation against whistleblowers or is common. The employer may illegally demote the worker or outright fire them. Fortunately, many state and federal laws protect whistleblowers. These laws are all a little different, and some protect more whistleblowing activity than others.

Finding the Right Attorney for Your Needs

If you have lost your job, you should meet with an employment lawyer to review your rights. An attorney with experience in labor and employment law can be an invaluable asset while litigating your case. Contact an experienced employment litigation to understand your legal options.