How Do I Know if I Have a Wrongful Termination Claim?

Ask yourself these four questions about the types of wrongful termination

By Canaan Suitt, J.D. | Last updated on September 19, 2023 Featuring practical insights from contributing attorney Twila S. White

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Also known as wrongful dismissal or wrongful discharge, wrongful termination is an employee’s illegal firing or removal.

To bring a successful wrongful termination claim, employees must prove their rights were violated. This means more than establishing that they were treated “unfairly”—an employer must have violated federal or state laws.

To assess whether you may have a wrongful termination claim, ask yourself the following four questions. If you think the answer is “yes,” the best course of action is to consult an employment lawyer with experience helping employees with wrongful termination lawsuits.

1. Did My Employer Breach an Employment Contract?

The first thing to know about wrongful termination cases is that most employees in the United States work at will. “What at-will employment means in layman’s terms is that you can leave at any time, and an employer can terminate you at any time—except for unlawful reasons,” says Twila S. White, an employment litigation attorney in Hermosa Beach, California, who represents employees in wrongful termination and other legal actions.

One unlawful reason would be a breach of contract.

Though relatively few, some employees have employment contracts that specify how long their term of employment is supposed to last, along with other provisions. If you have an employment contract and your employer terminated you before the term was up, you may be able to bring a breach of contract claim against your former employer.

What at-will employment means in layman’s terms is that you can leave at any time, and an employer can terminate you at any time—except for unlawful reasons… A person can be discriminated against or retaliated against, and one of the adverse employment actions is termination. I always say there’s no more adverse action than a termination.

Twila S. White

The same applies to implied contracts, which courts infer from an employer’s remarks, actions, or company policies regarding employment terms, disciplinary procedures, or job security. Not all states recognize implied contracts, and even in those that do, proving that an implied contract existed and that the employer breached it is typically very difficult.

The burden of proof is on the employee for breach of contract claims involving both implied and regular employment contracts.

If you suspect your employer breached your contract, consult an employment law attorney who can review the agreement or other relevant documents and assess your claim.

2. Was I Fired for Discriminatory Reasons?

Federal and state anti-discrimination laws prohibit employers from taking adverse employment actions against employees because of their membership in a protected class, including their:

  • Race
  • Ethnicity
  • Sex
  • Gender identity
  • Sexual orientation
  • Pregnancy status
  • Marital status
  • National origin
  • Religion
  • Age
  • Disability

Termination is only one of many adverse employment actions an employer could take against you for discriminatory reasons. “There could be a number of other adverse employment actions leading up to a termination that’s part of a discrimination claim,” explains White.

“Maybe someone was put on an investigatory leave, maybe they were suspended, maybe they were written up. All of those things could potentially be adverse employment actions. But if you were fired, you would also have a wrongful discharge claim.”

Proving Discrimination Can Be Challenging

Proving an employment discrimination claim is often difficult. There’s typically no “smoking gun,” such as a blatant statement from a supervisor that they fired you because of your race or gender.

Additionally, you’re not always trying to prove intentional discrimination. Courts also recognize unintentional or “disparate impact discrimination,” where a company policy seems neutral but has discriminatory effects on protected class members. Proving that a company policy had a discriminatory impact on you—perhaps leading to your termination—is also evidence-intensive.

Depending on the statute under which you plan to bring a lawsuit, you may be required to first file a discrimination claim with a federal or state government agency. For example, under Title VII of the Civil Rights Act of 1964, employees must file a discrimination claim with the Equal Employment Opportunity Commission (EEOC) before taking legal action against their employer.

To prove your discrimination-based wrongful termination claim, you’ll want to gather as much evidence as possible, including performance reviews, company policies, communications, and supervisor statements.

However, you must avoid illegally gathering evidence, such as recording your supervisor in the workplace without their consent. Given the complexity of proving employment discrimination, plus the strict requirements and deadlines for bringing a claim, it’s well-advised to speak with an employment lawyer as soon as you suspect workplace discrimination. They can advise you on how to address the problem and help you navigate the early process of filing a claim.

3. Did My Employer Retaliate Against Me?

It’s unlawful for an employer to fire you in retaliation for engaging in legally protected activities, such as reporting a violation of public policy or complaining about something in the workplace, says White.

Say you act in good faith as a whistleblower and report your employer’s illegal activities to a government agency. You might report sexual harassment, a hostile work environment, unsafe working conditions, or safety violations. Reporting the company’s illegal activities is protected by law, and an employer cannot terminate you as punishment. The same is true if you file a complaint with your human resources department regarding discrimination or harassment or participate in an internal investigation regarding the company.

Relatedly, an employer cannot fire you for refusing to ignore laws or perform illegal actions on its behalf, such as working in violation of wage and hour laws or ignoring safety regulations.

White adds that an employer’s conduct could violate several employment laws at the same time. For example, you could have a wrongful termination claim, a discrimination claim, and a retaliation claim. “They would be separate causes of action but part of the same lawsuit. A person can be discriminated against or retaliated against, and one of the adverse employment actions is termination. I always say there’s no more adverse action than a termination.”

4. Did My Employer Fire Me for Taking Protected Time Off?

Several federal and state laws enable employees to take time off from work, sometimes for extended periods. An employer cannot fire you for taking protected time off.

For example, the Family and Medical Leave Act (FMLA) lets employees take up to 12 weeks of unpaid, protected medical leave for the birth or adoption of a child or if they or a family member have a serious medical condition and need medical care.

Many states have laws that protect employees from termination or other adverse employment actions for taking time off for jury duty or to vote.

If you meet the requirements for taking legally protected time off, but your employer fires you in retaliation for taking that time off, you have a wrongful termination claim.

Find an Experienced Wrongful Termination Lawyer

If you answered “yes” at any time while reading about the grounds for wrongful termination, you may have a legal claim against your former employer and be entitled to back pay, reinstatement, or other damages.

Consider consulting with a wrongful termination attorney for legal advice on whether you have a claim. To begin your search for an experienced employment lawyer, visit the Super Lawyers directory and search based on your location.

To learn more about employee legal rights and employment and labor laws, see our overview of wrongful termination and employment law.

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