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 this category.

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.