Many employees who have been fired feel they have been “discriminated” against and want to sue for wrongful termination. However, there are only a handful of terminations that are truly unlawful, such as those based on one’s sex, race, disability, age (if over 40), or religion. Or those who have been retaliated against based on engaging in a protective activity (such as complaining about harassment or possible discriminatory treatment based on one of the above reasons, or complaining about wage or overtime (FLSA) violations, and a few others). But many seemingly inappropriate actions by employers are not necessarily illegal. Examples:
- “My employer discriminates against EVERYONE!”
- That’s impossible. Discriminating means treating one category of employees better than another. (i.e. treating men better than women; treating younger employees better than older employees; etc.)
- “I got a new boss. He is making so many changes and it feels like he is trying to force me out. I spent years at this company doing just fine. They should appreciate me for all the work I’ve done in the past.”
- This happens frequently, and it does not mean it’s illegal. If the real reason your boss is forcing you out is based on a protected category (such as your race, age, sex, religion, disability, color, or national origin), then it could be illegal. Otherwise, it may just be a change in management style/goals. Regarding the past work… you were paid for that work and, from a legal perspective, it probably does not matter.
- “My boss made me look bad in front of everyone by commenting on my mistakes at work or my performance problems.”
- That’s just a mean or harsh boss. That’s not illegal.
- “I complained to HR because my boss would not let me take off work so I can go to Las Vegas to celebrate my sister’s birthday. And then he fired me after he found out about my complaint. That’s retaliation!”
- Maybe he is retaliating against you for complaining, but it’s not a complaint concerning a protected activity. If you complained to HR about your boss making inappropriate comments based on sex, age, race, religion, or other protected categories, and then you were fired, that is more likely to be illegal retaliation.
- “I got a write-up (or put on a Performance Improvement Plan) for reasons that are false. I tried to explain to my boss/HR, but they disagreed and would not retract it. That is now in my personnel file forever and my career is over! Everybody will know! It is defamation! I want to sue for [insert whatever phrase you recently Googled]”
- No, no, and no. A write-up or PIP is usually not an actionable claim, even if you disagree with it. It is not defamation and third-parties will almost never know or even care. However, if you are later terminated and it turns out that write-up or PIP was given to you in a discriminatory manner when compared to a similar employee, then that could possibly be used as evidence of a discriminatory termination.
- “My boss made an inappropriate comment based on my race or gender. I complained to HR, and they disciplined him. I was told he would not retaliate. But a week later, he yelled at me because I made a mistake. And a couple months after that he sent me an email complaining that I had come into work late. He is retaliating!”
- Maybe, but probably not. An actionable retaliation claim usually must involve an ultimate employment action — likely something that causes financial harm (such as a termination, demotion, or not giving a standard bonus or raise).
- “I was accused of doing something wrong. But I didn’t do it. The company still fired me. It did not do a proper investigation. If it did a better job investigating, it would have found out that I didn’t do anything wrong. I want to sue for discrimination.”
- That’s also not likely discrimination. A “bad” or “incomplete” investigation or even mistakenly relying on incorrect information when deciding to terminate an employee is not necessarily illegal.
- “I lied to my boss. He found out and fired me. I’m mad/sad. I deserve a second chance.”
- Don’t lie.
- This is a terrible place to work. Everybody hates the boss.
- Then quit, or be thankful you’re not working there anymore. Again, is there discrimination or retaliation?
Also, even if an employer’s alleged actions may be illegal, there are still many other factors that go into evaluating an employee’s potential discrimination or wrongful termination case, as litigation and trial involves a substantial amount of time and risk. Sud Law P.C. takes on very few cases and potential clients are expected to go through extensive vetting, as the litigation process could be two-years or longer, involve a significant amount of expense, and require patience and commitment.