When You Can Sue an Employer for Wrongful Termination
If you’ve recently been terminated for cause, you may be wondering whether your employer was within their rights to fire you—or whether your dismissal constitutes wrongful termination. And, if it turns out you were fired illegally, your next question will probably be whether you can—and should—sue.
What Doesn’t Count as Wrongful Termination
Most workers in the United States are employed at will, which means that their employers can fire them for any reason, or no reason at all, provided that the reason isn’t discriminatory. (More on that in a minute.)
This means that it's usually legal for your employer to terminate your employment unexpectedly, without advance warning, and to decline to provide a reason for your termination.
In fact, many employers choose to offer as little notice or explanation as possible, even going so far as to characterize the termination as a layoff, rather than take the risk of violating the law by providing a reason that later turns out to be discriminatory.
They are also not obligated to provide you with an opportunity to correct issues pertaining to your work performance before terminating your employment. (Although again, as a matter of company policy, many employers will create a standard process for termination that includes a performance improvement plan, both to minimize the chances of legal hassles and to maintain good morale among the staff.)
Examples of Wrongful Termination
Per federal law, it’s illegal for employers to discriminate in hiring, firing or promotion on the basis of:
- Sex or Gender
- Race or Color
- National Origin
- Age (over 40, according to federal law, although some states offer protections for workers younger than age 40)
- Genetic Information
Workers can also sue or file a charge with the Equal Employment Opportunity Commission if they are sexually harassed at work, fired for being a whistleblower, subject to constructive discharge (aka forced to resign), or made to endure a hostile work environment.
To sue your employer for discrimination, you must first file a charge with the EEOC—unless you plan to file a lawsuit under the Equal Pay Act. In that case, you can sue without obtaining a notice of the right to sue from the EEOC.
Questions to Ask Yourself Before Suing
1. Do you feel that the termination was based on discrimination? If so, you will likely have to file a charge of discrimination with the EEOC before filing a job discrimination lawsuit against your former employer. Again, the exception is violations of the Equal Pay Act, in which case, you are not required to file a charge, provided that you file your suit within two years of the pay discrimination.
Keep in mind that you have a limited amount of time in which to file—generally, 180 days from the time of the incident, although local laws may extend this deadline to 300 days.
2. What’s your goal in suing (and is it realistic?) Do you want money, a change in behavior, or just the satisfaction of knowing that they didn’t get away with it, scot-free? It’s important to know what your goals are before you get embroiled in a long legal process. Consult with an employment attorney early on, to figure out whether your goals are reasonable.
3. Are you willing to invest time and money in pursuing your case? Unless you’re able to find an employment attorney to take your case pro bono, suing is expensive. It can cost thousands of dollars to take a suit to trial. To make matters worse, employers typically have in-house lawyers at the ready to wear you down with delays and postponements.
How to Move on After Being Fired
Regardless of whether you choose to sue for wrongful termination, you’ll need a plan for moving forward after being fired. That means knowing your rights as a (former) employee, including when and where to pick up your final paycheck, whether you’re entitled to pay for accrued vacation and sick time, what will happen with your health care benefits, retirement plan, any stock options and more.
HR will be able to assist you with these questions, as well as inform you about how the company plans to characterize the dismissal. It’s in your best interests to find out now before future employers call asking to verify your employment history.
Don’t assume that they’ll say the worst: many organizations have a policy of confirming no more than job title and dates of employment.
You may even be entitled to unemployment benefits, depending. You won’t know until you ask.
Looking toward the future, practice answering interview questions about the termination, and gather references from contacts to bolster your candidacy for jobs. Don’t let this reversal stand in the way of your success. Many famous and influential people were fired before making their mark on the world, including Steve Jobs, Oprah Winfrey, and Thomas Edison.
The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.
National Conference of State Legislatures. “At-Will Employment Overview.” Accessed June 13, 2020.
EEOC. “Discrimination by Type.” Accessed June 13, 2020.
EEOC. “Filing a Lawsuit.” Accessed June 13, 2020.
EEOC. “How to File a Charge of Employment Discrimination.” Accessed June 13, 2020.
Nolo.com. “What Will It Cost to Hire a Lawyer for Your Wrongful Termination Case?” Accessed June 13, 2020.