Was I Fired for Discriminatory Reasons?

Use these links to jump to different sections:

• Legal Protections Against Employment Discrimination
• Protections Against Workplace Harassment
• Protections Against Employer Retaliation
• The Key to a Successful Wrongful Termination Claim: Proving Your Damages
• Getting Legal Help from a Wrongful Termination Lawyer

If you’re a private-sector employee in the United States and you aren’t a member of a union, chances are you work at will. In essence, at-will employment means an employer can fire an employee at any time and for any reason. If that sounds unsettling, it’s important to know the exception to the rule: An employer can’t fire employees for illegal reasons. Leading examples of wrongful termination include:

• Breach of contract if an employment contract exists;
• Retaliation for reporting illegal activity in the company; and
• Employment discrimination.

“Employment discrimination occurs when an employee suffers an adverse employment action because of their membership in a protected class,” says Sonya Smallets, an employment law attorney at Minnis & Smallets in San Francisco, California. Learn more about employee rights against discrimination below.

Legal Protections Against Employment Discrimination

Both federal and state anti-discrimination laws prohibit employers from firing employees—or taking other adverse employment actions such as demotions—for discriminatory reasons. Leading federal laws include:

• Title VII of the Civil Rights Acts of 1966 prohibits employment discrimination on the basis of the following protected categories: race, color, religion, sex (including gender, gender identity, pregnancy, childbirth and related medical conditions, and sexual orientation), or national origin;
• The Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of a person’s physical or mental disability;
• The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against employees who are 40 or older; and
• Genetic Information Nondiscrimination Act of 2008 prohibits genetic information discrimination.

Federal anti-discrimination laws are enforced by several government agencies, notably the U.S. Equal Employment Opportunity Commission (EEOC). Depending on where you live, state law may go beyond the baseline set by federal anti-discrimination law. In other states, employees have to rely solely on federal protections.

Protections Against Workplace Harassment

One major type of employment discrimination is harassment. “It’s illegal to subject an employee to harassment or a hostile work environment because of their membership in a protected class,” explains Smallets.

“Harassment involves interactions in an interpersonal relationship—things like sexist statements, sexual statements, sexualized conduct, racist statements or ‘jokes.’ These types of behaviors change the work environment by creating hostility toward people of a protected group. The claim is based on the atmosphere that has been created in the workplace.”

One important issue [in wrongful termination claims] is proving damages. You are going to have to show not only that something illegal happened to you but that you were actually harmed as a result… If your adverse employment action is termination, the economic loss is relatively clear… The same is true of demotion: As long as it’s accompanied by a salary reduction, you can point to a clear economic loss.

Protections Against Employer Retaliation

It’s also unlawful for employers to retaliate against employees for engaging in various protected activities. “Retaliation occurs when an employee suffers an adverse employment action because they objected to some illegal activity or refused to participate in some kind of unlawful conduct,” says Smallets.

Here are some common situations where employer retaliation occurs:

• Reporting workplace sexual harassment or a hostile work environment;
• Whistleblowing on the employer’s illegal activities or participating in an investigation;
• Reporting safety violations or unsafe working conditions to the Occupational Safety and Health Administration (OSHA);
• Taking protected time off, for example, requesting an accommodation for a disability under the ADA;
• Filing a worker’s compensation claim for work-related injuries (note, however, that an employee who is retaliated against for filing a workers’ comp claim will likely have to pursue that claim through their state’s workers’ comp system, which is distinct from other types of wrongful termination claims).

Learn more about the role of retaliation in wrongful termination claims.

The Key to a Successful Wrongful Termination Claim: Proving Your Damages

In any wrongful termination case involving a claim of discrimination, “One important issue is proving damages,” says Smallets. “You are going to have to show not only that something illegal happened to you but that you were actually harmed as a result.”

The categories of damages you can potentially recover include:

• Economic loss;
• Non-economic loss, such as emotional distress;
• Punitive damages; and
• Attorney’s fees.

Smallets points out that economic damages are most obvious in cases involving termination or demotion. “If your adverse employment action is termination, the economic loss is relatively clear. It’s the amount of money you would have earned had you remained employed—not fired for this discriminatory reason—minus the amount of money you earned at your next job or that you could have earned if you had done a reasonable job search. The same is true of demotion: As long as it’s accompanied by a salary reduction, you can point to a clear economic loss.”

What about the economic harm of a less severe action, such as a poor performance review?

“It will depend on the specific situation,” Smallets says. “For example, it’s not uncommon in the world of startups for a significant portion of an employee’s compensation to be bonuses or stock grants. Now, say that for the last five years, an employee got ‘exceeds expectations’ on their evaluation, but this year, after reporting sexual harassment, they get ‘meets expectations.’ As a result of this lower evaluation, instead of getting 50 percent of their salary as a bonus, they get 5 percent, or instead of getting a large stock grant, they get none. In a case like that, you may be able to demonstrate economic harm from a poor performance review stemming from retaliation.”

Getting Legal Help from a Wrongful Termination Lawyer

Smallets says that it can still be helpful for employees to reach out to an employment lawyer for guidance about their legal rights, even if their wrongful termination claim isn’t ready to be pursued. “The first phone call is typically free,” she says, so if you have questions or concerns about workplace activity, consider reaching out to a lawyer for legal advice tailored to your situation.

For more information on wrongful discharges and the rights of terminated employees, see our overviews of employment and labor law, discrimination law, and wrongful termination.