What is a "wrongful" termination?

The term, “wrongful termination” is the most commonly misunderstood legal term in employment law after “harassment.”  (See the article "What is illegal harassment in employment?") The legal definition of “wrongful termination” is much narrower than most think.

To an employee, a termination may be “wrongful” in the employer’s reasoning for the termination did not make sense, if it was based on a mistake by the employer, favoritism, misplaced blame, or if the termination was no fault of the employee’s.

As an illustration, Sally the Salesperson, works for the national retailer K-Smart. One day on the sales floor, Sally’s coworker, Arnie, places incorrect bar codes on numerous pieces of merchandise. As a result of Arnie’s blunder, dozens of items sell for less than full retail value. Unfortunately, K-Smart management incorrectly blames Sally, and not Arnie, for the lost revenue. Sally is then fired.  

Sally may describe her termination as a wrongful termination. After all, it was Arnie’s mistake, not Sally’s. Morally, Sally is correct in labeling her termination as “wrongful”. However, Sally’s termination doesn’t actually meet the legal definition of a wrongful termination.

Legally, a wrongful termination is a termination that violates the law or a government policy. The most common wrongful terminations are those based on discrimination or harassment because of a "protected characteristic". This includes terminations based on age (if over 40), ancestry, color, disability or “health” discrimination, gender, gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation. Other policies prohibit retaliation against whistle blowers--employees who have reported illegal acts. There are dozens of government policies that may constitute a wrongful termination.

However, there is probably no policy that legally prohibits K-Smart from incorrectly firing Sally for the negligence and mistake of a co-worker. Therefore, Sally was not “wrongfully terminated” in the legal sense of the term.

As an illustration of a wrongful termination that would meet the legal definition, let’s slightly twist the illustration with Sally the Salesperson described above. Imagine that Sally the Salesperson is five-months pregnant. Even though Sally is pregnant, she is still performing the same duties and working the same number of hours at K-Smart as she did pre-pregnancy. However, upon discovery of the incorrect bar codes, Sally’s supervisor, Johnny, tells K-Smart Human Resources, “It was probably Sally’s mistake. Sally is pregnant and has baby brain. She can’t think straight and shouldn’t be working anyways.” Sally is then fired from K-Smart.

Under these facts Sally has been wrongfully terminated in the legal sense of the term. Johnny’s statements about Sally’s performance are direct evidence that Sally’s termination was motivated by her pregnancy; a legally protected characteristic. K-Smart has violated California’s Fair Employment and Housing Act’s prohibitions against pregnancy discrimination in employment. Under these facts, Sally does have a case of wrongful termination of employment.

Do you think you were wrongfully terminated? Do you know someone who was? If so, visit or call Brian Mathias Law for a phone consultation. Ready to stand up for your rights?

What is illegal "harassment" in employment?

The most commonly misunderstood and misused employment-law term is “harassment.”

The legal and non-legal definitions of “harassment” differ in significant ways. Used in the ordinary or common sense of the term, harassment means to annoy, bother, or intimidate. In an employment context, one may describe many negative workplace encounters as harassment.  This could include yelling, cursing, undue criticism, and outbursts of anger or frustration by supervisors directed at employees.

However, the legal definition of harassment under the Fair Employment and Housing Act (the FEHA) adds an additional requirement. Under the FEHA, the plaintiff-employee must also be subjected to unwanted harassment because of a legally protected characteristic. Legally protected characteristics include age (if over 40), ancestry, color, disability or “health” status, gender (including pregnancy and “sexual harassment”), gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation.

As an illustration, Donny works as a waiter at the busy Central Coast restaurant, Shade Creek. Shade Creek is a fast-paced and high-stress work environment. Donny’s manager, Jordan, takes his job at Shade Creek very seriously. Unfortunately, Jordan regularly loses his temper at work and yells at all employees who are perceived to be performing at less than 100% capacity. Jordan regularly yells at Donny multiple times per shift, more than any other employee. One night, Donny spills ice tea on a patron’s lap. Jordan swears-out Donny, calls him stupid, and terminates him. Donny then calls an attorney and says he worked in a “hostile work environment” and that he was regularly “harassed” by Donny.

Unfortunately, Donny does not have a case for harassment. Donny experienced pervasive harassing conduct at work, but not illegal harassment. Donny was harassed because of the fast-paced, high-stress nature of his work. His manager, Jordan, yells at all employees, not just Donny. Most importantly, there are no facts to show that Donny experienced harassment because of a protected characteristic. Donny simply had a very bad working environment at Shade Creek.

To illustrate an example of unlawful harassment, let’s change the facts slightly. Unfortunately, Donny the waiter was born with two left feet; a birth defect. As a result, Donny has difficulty with walking and coordination. This causes Donny to be much clumsier and slower than the other waiters at Shade Creek Restaurant. Donny’s coworkers are aware of Donny’s disability. Unfortunately, Jordan regularly yells at Donny, far more than the other employees. Jordan openly refers to Donny as “the Gimp”, “Clubfoot”, and “Leftie” in front of customers and coworkers. One day, Donny trips at work and spills ice tea on a patron. Jordan erupts at Donny, and tells him “Today’s your last day. Get out of here, Gimp!” Donny then calls a lawyer.

Under these facts, Donny has a great case for harassment under the FEHA. Donny has lots of evidence that Jordan’s unwanted name calling was directed at him because of his disability and  medical condition (his two left feet); protected characteristics under the FEHA. The same facts would also support a case of disability discrimination under the FEHA.

Are you or a friend experiencing harassment at work? Call Brian Mathias Law, serving both sides of the Monterey Bay. Ready to stand up for your rights?