Brett K. WisemanEmployment Law

Wrongful Termination & Hostile Work Environment Claims

The most common civil claims against employers relate to either (1) problems with wages and hours worked, or, (2) termination and harassment claims.  Claims in the first category may include overtime issues, missed meal or rest periods, inaccurate paystubs, bonus payments, and similar issues.  While the details can be quite complicated, the basic question involved in this first category is relatively straightforward: are the wages being paid appropriate under the law?

The second category of claims, the termination and harassment category, is much less clearly understood by the average person.  Much of the lack of clarity can be blamed on the names assigned to these claims because the names of these claims are often misleading.  It is true that there are claims that exist and are named wrongful termination, harassment, and hostile work environment.  However, these names are misleading.

California is an at-will employment state (Labor Code § 2922.)  That means that an employee may be terminated “at will” and without any particular reason.  An employer (or a supervisor or boss) can even fire an employee/subordinate for wearing a red shirt.  This is true even if wearing a red shirt has nothing to do with the job.  This is true even if the fired employee is the best worker in the company.  This is true even if the supervisor never gave the employee any warnings or the ability to succeed in the job.  The law does not require that the employer make good business decisions or require that an employer be kind.  Many employees hear those facts and believe that the termination would be ‘wrongful’ – certainly it is a bad reason for termination.  However, ‘wrongful’ in this context may be better understood as ‘illegal’.  Instead, an employee only has a lawsuit for termination or harassment type claims if that conduct is performed for certain reasons.  These limited reasons are what is referred to herein as the ‘Forbidden Reasons.’

The Forbidden Reasons are as follows: Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, martial status, sex, gender, gender identity, gender expression, age, sexual orientation, military or veteran status. (Government Code § 12940.)  These categories are specified by statute.  Therefore, if the employer fires someone because of the color of their skin or their religion, for example, then termination is likely a ‘wrongful termination’ and a claim may appropriately be brought against the employer for said termination if that conduct is pervasive or severe.

There is an additional category of claims that qualify for a wrongful termination claim or a claim for harassment – if the conduct is retaliatory.  Again, to qualify the conduct must be in retaliation and must be illegal.  There are a laundry list of reasons that an employer is not permitted to retaliate or discriminate against an employee[1].  Significantly, complaints about illegal wage practices is protected activity.  An employer who fires an employee for complaining about illegal wage practices (such as failure to pay overtime and the other matters addressed above) will subject the employer to claims for wrongful termination and otherwise.

Have you been wrongfully treated or terminated?  Has an employee accused you/your business of wrongful conduct?  The line can be confusing between insulting and illegal conduct.  Consult with legal counsel of your choice to navigate these issues.

[1] An exceptional list of these laws is maintained by the California Department of Industrial Relations,

Brett K. Wiseman

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