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How to Win Discrimination, Retaliation and Wrongful Termination Cases

If I had a dollar for every time I have asked a potential new client, “How are you going to prove motive?” I would be very rich. No matter what kind of case, motive is difficult to prove in law. Employment discrimination and wrongful termination cases are difficult to win because the employee must prove that the employer acted with a specific illegal motivation (i.e. the employee was fired because of his race, sex, national origin, etc.)

In California most employees are employed at-will, meaning employees can be terminated at any time for any reason and can resign at any time for any reason. There are only a handful of exceptions to the rule of employment at-will, such as illegal discrimination and retaliation. Importantly, discrimination and retaliation are the exceptions rather than the rule. This makes it relatively easy for an employer who acts with an illegal motive to provide a legitimate explanation as to why an adverse employment action was taken.

So, how do employees win discrimination, retaliation and wrongful termination cases? What kind of evidence is necessary to prevail? The answers depend on the claims asserted, the evidence, and several other factors.

An employer or manager will rarely admit it acted with illegal motives. Everybody knows that employment decisions cannot be based on race or sex. Everybody knows that an employee cannot be fired for reporting the employer to the government. Thus, employment discrimination, retaliation and wrongful termination cases often turn on circumstantial evidence. Generally, the more circumstantial evidence of discrimination, the stronger the case and the better the chances of prevailing.

Circumstantial evidence of illegal motive comes in many forms. For example, discrimination can be shown by evidence that other employees engaged in similar conduct but were not treated similarly. The classic example is where three employees, two men and a woman, frequently show up late. The woman is fired for excessive tardiness but the men are not even reprimanded.

Discrimination can also be proven through evidence that the employer’s stated reason is false. For instance, if a manager fires an employee because she saw the employee yelling at a customer, but the customer and employee both testify that the employee never yelled and was polite, then the employee may have a case. The logic is that, if the employer did not have an illegal motivation, then why would it fire somebody on false grounds? It is important to note, however, that falsity of the employer’s justification is, in and of itself, weak evidence of discrimination. The reason for this is that people may lie for all kinds of innocent reasons. The manager in the above example may have just wanted the employee fired because the employee was always questioning her authority, so she made up a story about the employee yelling at a customer because the employer’s policies permit a termination for yelling at customers but do not permit a termination for questioning a manager’s authority. In such a case, the real reason was not because of race, sex, or any other illegal ground, but because the manager was just looking for a way to get rid of somebody she believed was disrupting the workplace.

Another way to prove discrimination is when the company fails to follow its own policies concerning investigations into alleged misconduct. This reminds me of a case I had a while back where the employer claimed it fired the employee for harassing co-workers in violation of the company’s anti-harassment policy. Company policy required that any time an employee is accused of harassment, the employer was required to conduct a harassment investigation, including interviewing all witnesses. In that case, the company admitted it never conducted any such investigation. Like the example in the above paragraph, my client denied ever harassing anybody and the employee he allegedly harassed admitted she did not feel he had harassed her. So, the falsity of the employer’s stated reason, coupled with the failure to investigate pursuant to company policy, was, according to the court, enough evidence to conclude that unlawful discrimination was the real reason.

There are many other factors that go into evaluating a discrimination, retaliation and wrongful termination case. Some types of employment cases are generally easier to win than others. For example, whistleblower and retaliation cases are easier to win than discrimination cases. Sex discrimination cases are generally easier to win than race discrimination cases. There are various reasons for this and these statements are only generalizations because different judges and juries come to different results.

Most importantly however, above all else, my experience has been that despite the amount or strength of the evidence, employees who are honest, respectful, accountable and deserving are most likely to prevail. I would take a likeable employee with a long, unblemished employment history where the evidence is weak over a dishonest, greedy employee with ongoing performance problems where the evidence is strong any day. In order to prevail, a jury not only has to believe that you are owed compensation, but also that you deserve compensation.

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