how to prove wrongful termination
There is no simple answer to the question, “how to prove wrongful termination?” This is because there generally is no legal claim solely for “wrongful termination.” Rather, wrongful termination claims must be based on an underlying legal violation. Common bases for wrongful termination include:
- Breach of contract
- Discrimination
- Retaliation
- Violation of public policy
If the termination does not fall into one of these categories, or is otherwise not unlawful, it is unlikely that the employee will have a wrongful termination claim. Common examples of termination that may seem wrong, but are often not legally actionable, are termination because of a personality conflict with a supervisor and termination of an at-will employee for a false accusation.
How to Prove Wrongful Termination in Breach of Contract
CAN I SUE FOR WRONGFUL TERMINATION?
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To have a claim for wrongful termination in breach of contract, the employer must have breached a term of your employment agreement.
The most common type of breach is when the employment agreement states the employee may only be terminated for cause. If this is the case. the employee must demonstrate that the employer’s reason for the termination was not sufficient to justify the termination, either because the reason is not true or because it does not rise to the level of cause.
However, most states are by default at-will employment states, and therefore the employer may terminate the employee for any reason, or no reason at all. In such a case, the employee will likely not have a wrongful termination in breach of employment claim.
If you have no employment agreement, if the employment agreement is silent on whether the employee is at-will, or if the employment agreement explicitly states the employee is at-will, the employee is likely at-will and this claim may be unavailable.
This information can usually be found in a clause in the employment agreement titled “Termination.”
How to Prove Wrongful Termination based on Discrimination
In all states, it is illegal to terminate an employee because of the employee’s race, color, sex, sexual orientation, gender identity, national origin, or religion. State laws may additionally prohibited termination based on other characteristics such as weight.
There are two ways to prove wrongful termination based on discrimination.
The first is what is called direct evidence. This is rare, and requires statements demonstrating discriminatory animus by the decisionmaker that is linked to the termination. An example of this would be if the decisionmaker told the employee that the employee was being terminated because an employee of a different gender was desired for the position.
However, direct evidence could also come from testimony from others, or documentation, such as emails, where the decisionmaker states that the reason for the termination was because of the employee’s race, sex, etc. An example of this would be if a co-worker testified that the decisionmaker stated to them that the employee was terminated because of the employee’s race, sex, etc.
The second method to prove wrongful termination based on race is referred to the indirect evidence method. Under this method, the employee must demonstrate circumstances which give rise to an inference of discrimination, and also prove that the employer’s explanation is a pretext, or lie, for discrimination. For example, if an employee is terminated for being late once, yet other similarly situated employees of a different race have been late multiple times but not fired, this may give rise to an inference of discrimination. The employer will then be required to provide an explanation for the disparate treatment. If the employee can demonstrate that the employer’s stated reason was not the real reason for the termination, it will be up to a judge or jury to decide whether the reason the employee was terminated was because of the employee’s race, sex, etc.
For a more extensive discussion on how to prove wrongful termination based on discrimination, you can visit our Know Your Rights – Discrimination page.
How to Prove Wrongful Termination based on Retaliation
Wrongful termination based on retaliation occurs when the employee engages in protected activity and the employer terminates the employee because of the protected activity.
One common type of protected activity is opposing or reporting discrimination or harassment based on a protected class, e.g., race, sex, religion, national origin, disability, age, FMLA, etc., or participating in an investigation of such as a witness. If the employer terminated the employee for engaging in this type of protected activity, the employee may have a claim for retaliation in violation of the civil rights acts. However, if the harassment or discrimination is based on a personality conflict or a class that is not protected, it is generally not illegal to terminate the employee for such conduct.
Another common type of protected activity is often referred to as whistleblower activity. An employee engages in whistleblower activity when the employee reports violations of the law to a public body. For instance, if an employee reports tax fraud to the IRS, the employee has engaged in protected activity and cannot be terminated for doing so.
Lastly, many states recognize a catch-all wrongful termination claim based on violation of public policy. This usually entails terminating the employee because the employee has refused to violate the law, has exercised a clearly established right, or the termination violates public policy in some other way.
The methods to prove a wrongful termination claim based on retaliation are similar to that of a wrongful termination claim based on discrimination. If there is no direct evidence that the reason for the termination was the employee protected activity, the employee will have to demonstrate that the protected activity was the cause of the termination through circumstantial evidence.
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This page is for general informational purposes only and should not be considered legal advice. Your situation may not fit the claim you think it would, but it may fit another. Only an attorney with comprehensive knowledge of employment law can tell you whether you have a claim. You should always consult with an attorney before taking or refraining from taking any action in your individual situation.
