Introduction: California is an “at-will” state. What that means is that
if you are an employee without a binding contract for a specific duration
of employment, the employer can terminate you or treat you any way they
want for any reason. However, there are certain exceptions.
One exception is that the employer cannot discriminate against you. Let’s
see how discrimination works in the employment context below.
Question: Dear Mr. Cheng: I am an employee with a large corporation. The employer
terminated me because he did not like the way I was performing on the
job. I think it is because I am Mainland Chinese. I worked so hard for
my employer for 3 years. Just because his business is not that good means
that he can let me go. Can I sue my employer? David
Dear David, I understand your feelings. Many employees feel when they are
terminated or have an adverse employment decision that their employer
has done so unreasonably. The following is a basic analysis for wrongful
termination but this analysis can be used for any adverse employment decision.
You can always sue your employer: Anyone can sue anyone else for anything. Whether one will win is a totally
different story. Therefore, the short answer to your question is “yes”
you can sue.
Employee or Independent Contractor: In many states, only employees have protection against discrimination
while independent contractors may not. Whether one is an employee or independent
contractor requires some detailed analysis that will not be stated here.
(I previously wrote on this issue. Please contact the newspaper or our
office for the article).
At Will or Not: If an employee does not have a contract that states that his employment
can only be terminated for specific reasons he can be terminated at anytime,
unless the reasons are illegal.
Underlying Purpose of Termination: The reasons why your employer terminated you are crucial to a determination
of whether you will be successful in your case. If your employer terminated
you because his business was bad, you will not be successful in your case.
If your employer terminated because you are in a protected class that
is a totally different issue and may be grounds for a lawsuit.
Unreasonable Actions does not Mean a good case: Even if you are terminated for an unreasonable reason, if you are not
in a protected class your chances of winning become very small. For instance,
if your employer terminated because he does not like the way you wear
your clothes; that may be unreasonable but since the actions of the employer
do not violate a protected class you most likely will not win your employment case.
What is a protected class?: California protects more than the federal government does. The following
classes are protected and therefore employers are subject to a much stricter
scrutiny when there is belief that the termination occurred because of
a protected class. California protects several classes. Under Government
Code 12940(a) the following classes are protected: 1) Race; 2) Religion;
3) Color; 4) National Origin; 5) Ancestry; 6) Physical Disability; 7)
Mental Disability; 8) Medical Condition; 9) Marital Status; 10) Sex; and
11) Sexual Orientation. Should you fall into a protected class California
law protects you against actions by your employer that occur because of
For instance, if your employer really did terminate because you are Mainland
Chinese, because you fall into a protected class you will win. The next
question is what will you win?
What does a person get if they can prove discrimination? If you a win a wrongful termination lawsuit against your employer you
can get the following: 1) Monetary damages that include past economic
loss (loss earnings/lost profits/medical expenses); 2) Future economic
damages that include future economic loss (loss earnings/lost profits/medical
expenses); 3) Past noneconomic loss that includes physical pain/mental
suffering; 4) Future noneconomic loss that includes physical pain/mental
suffering; 5) Punitive Damages; 6) Attorney Fees and Costs
Exception for Employers: It seems like anyone can win a discrimination lawsuit against an employer.
However, our office has prosecuted and defended employers successfully.
See what defenses courts have allowed employers to use when there is an
adverse employment decision.
1) Bona fide occupational qualification: the decision was lawful because
the job requirement required the employer to make that decision and it
was impossible or highly impractical to rearrange the job responsibilities
. (Ex. Chinese restaurant needs a waiter to communicate with people in Chinese).
2) Business Necessity: The purpose of the action is lawful because it is
done to operate a business safe and efficiently and that the employment
decision substantially accomplishes this purpose
3) Reasonable Accommodation did occur: Employers are required to reasonably
accommodate their employees. Reasonable accommodations may include the
following factors: making the workplace easily accessible; changing job
responsibilities or work schedules; reassigning an employee to a vacant
position; modifying or providing equipment or devices; modifying tests
or training materials; and providing qualified interpreters or readers
4) Inability to Perform Essential Job Duties: The job duty is essential
and the employee could not perform it.
5) Undue Hardship: The proposed accommodation would be an undue hardship
on the business. Factors include but are not limited to: the nature and
cost of accommodation; defendant’s ability to pay for the accommodation;
the type of operations conducted at the facility; the impact on the operation
if the accommodation is done; and the number of defendant’s employees
and the relationship of the employee’s duties to one another.
Conclusion: Employers have a duty to treat their employees fairly. The law is not
one sided. Employers can treat their employees however they want but cannot
do it in a discriminatory manner that is violate of the law.