File a Wrongful Termination Claim

There are many reasons that a person is wrongfully terminated. A person may be wrongfully terminated in violation of their employment contract. Also, they may be wrongfully terminated because of discrimination. Whereas a breach of employment contract suit is resolved in civil court, the general process for filing a wrongful termination claim for discrimination is to go through the Equal Employment Opportunity Commission (EEOC). If the EEOC is not able to solve your issue to your satisfaction, you may also be able to sue your employer in federal court.

Steps

Determining if You Have a Case

1. Determine if you are an “at will” employee. Most employees are “at will.” Under this arrangement, an employer may fire the employee for any reason or no reason at all. Similarly, an employee can quit at any time and for any reason. Forty nine states are “at will” states (all but Montana).
   • There are limits to “at will” employment. First, if you have an employment contract, then the contract supersedes the “at will” doctrine. Furthermore, statutory anti-discrimination laws also prohibit terminations motivated by bias against certain characteristics.
   • Also, some states will limit the ability to terminate for “public policy” reasons, e.g., you can’t be fired for failing to perform an illegal act or for reporting an employer’s illegal activity.
2. Learn the basics of federal anti-discrimination law. Federal statutes prohibit discrimination on the basis of race, color, national origin, religion, and disability. It is illegal to fire someone for these reasons.
   • Federal law also prohibits discrimination on the basis of sex (whether the person is male or female). Keep in mind that “sex” encompasses pregnancy; accordingly, it is against the law to fire a woman because she is pregnant.
   • Age discrimination. Under federal law, it is illegal to fire someone who is over the age of 40 because of their age.
   • Discrimination based on sexual orientation is currently only prohibited for federal employees. However, “sexual orientation” discrimination may also fall under “sex.” For example, it is illegal to fire a gay male because he is too “effeminate” or otherwise fails to conform to sex stereotyping.
   • It is also illegal to fire someone in retaliation for the employee’s reporting of illegal discrimination. This prohibition applies even if the EEOC later finds that no discrimination occurred.
3. Read up on state and local anti-discrimination laws. Many states provide greater protection than the federal anti-discrimination laws. For example, about half of the states prohibit discrimination on the basis of sexual orientation.
4. Check if you have an employment contract. Wrongful termination cases can be based on “breach of contract” as well. Where you have an employment contract, your employer must abide by the terms of the contract. Any failure to abide by the terms can trigger a lawsuit.
   • For example, if you were guaranteed employment for a set amount of time, your employer has to honor that promise unless something else in the contract authorized your termination.
   • Some states will consider handbooks, policy manuals, and other documentation as creating “implied contracts” between employer and employee. Your implied contract might entitle you to a notice period or severance pay before being terminated.
   • Language in a handbook must be sufficiently clear that a reasonable employee would believe that a contract is being offered. For example, language such as “shall” or “must” or “never” before a promise is sufficiently clear evidence of a contractual promise.
   • Also, verbal promises can constitute a contract. Some courts have found that where an employee relies on an employer’s promise to his or her detriment, then a contract has been created.
5. Identify the reason you were terminated. You should look at your termination letter or email and try to find the reason given. The reason stated may not, in fact, be the real motivation. If you believe the motivation was discriminatory, then you can seek redress by filing a wrongful termination suit.
6. Understand “constructive discharge.” Be aware that you can also bring a wrongful termination suit even if you quit your job. “Constructive discharge” occurs when you quit your job because the working conditions were so intolerable that you felt you had no other choice but to leave.
   • “Constructive discharge” is difficult to prove. You will need to show that the employer created or allowed the hostile work environment, or that your employer knew that the environment would likely cause you to quit. A good example is sexual harassment which your employer condones or participates in.
7. Document a pattern of bias or retaliation. If you believe you were illegally discriminated against, then you will need evidence of the bias. Relevant documents would include disciplinary notices, performance reviews, and any communications between you and your supervisor or other members of management.
   • Gathering documentation could be difficult. Some acts appear discriminatory only in hindsight. As best as you can, you should sit down and write down everything you remember being said or done that could indicate bias. Note dates, names, and how you responded.

Filing a Complaint with the EEOC or Your State Agency

1. Determine whether to file with a state agency. The EEOC is a federal agency created to handle cases of employment discrimination. Additionally, the EEOC gives you a choice to file a complaint with your state employment agency instead of the EEOC.
   • Some states provide more protection and afford plaintiffs more rights than the federal government, so it may be beneficial to file with the state agency. Check your state’s Department of Labor website to see if you have a state agency.
   • California, for example, allows applicants to request an immediate “right to sue” letter. This means that you would not need to wait to exhaust your administrative remedies before going to court, as you would with the EEOC.
   • California law also prohibits “English only” policies and discrimination based on sexual orientation, which federal law does not. Moreover, it defines “disability” more broadly than federal law.
2. Take any required preliminary steps. In some cases, you will need to work through a company policy for filing a grievance before you file a complaint with the EEOC or your state agency.
   • If you are thinking of quitting and filing a constructive discharge claim, then you will need to follow your company’s policies for reporting harassment or otherwise hostile conduct. Look in your employee handbook and follow any procedures.
   • If you belong to a union, then you should contact your union representative. Unions often have contract provisions that limit the ability of union workers to file work-related lawsuits.
3. Consider hiring an employment attorney. Employment law differs from state to state, and the facts of your case are unique. Only a qualified employment attorney can offer tailored legal advice.
   • To find an attorney, contact your state bar association. They should have a referral system.
   • If costs are a concern, ask about a contingency fee arrangement. Under this arrangement, an attorney only gets paid if she wins your case. Typically, she will get around 33% if the case settles and up to 40% if the case goes to trial. You will, however, be responsible for most court costs (such as filing fees, expert witness fees, and court reporter expenses).
4. Locate the appropriate agency office. The EEOC has field offices around the country. Usually, you would file your complaint at the EEOC office that is nearest you or your place of employment.
   • To find an office, visit this website and enter your zip code.
   • If you are looking for a state agency, then check with your state’s Department of Labor.
5. Set up a meeting with the EEOC office. You should contact the EEOC (or state office) as soon as possible. There are many different deadlines that you will need to meet when pressing your claim for discrimination.
   • Generally, you must file a complaint with the EEOC within 180 days from when the discriminatory act happened. If your state has laws that prohibit discrimination on the same basis as federal laws, then the deadline is extended to 300 days.
6. Fill out your complaint. You can file a complaint in person at any EEOC office that you choose. Each office has its own procedure for how complaints are filed. However, you will typically be interviewed by an EEOC staff lawyer.
   • During the interview, the staff member will evaluate whether or not your employer’s actions seem to be illegal discrimination.
7. File by mail. If you can’t stop in, you can file by mail. To file by mail, send the EEOC a letter that includes the following information:
   • your name, address, and telephone number
   • the name, address, and telephone number of the employer you want to file your complaint against
   • the number of employees employed there (if known)
   • a short description of the events you believe were discriminatory
   • when the events took place
   • why you believe you were discriminated against
   • your signature (required to begin the investigation)
8. Wait for the decision. After interviewing you and receiving your complaint, the EEOC will decide whether or not to pursue your claim. Their decision will be mailed to you.
   • If the EEOC wants to pursue your complaint, they will send you a “Charge of Discrimination” form that describes the incident you described. You must review it and then sign it before sending it back.
   • Once the EEOC receives your signed “Charge” form, it will interview your former employer and try to facilitate a settlement.
9. Ask for a “right to sue” letter. The EEOC has 180 days to decide whether or not to pursue your claim. If 180 days elapse, then you can request a “right to sue” letter, which authorizes you to file a lawsuit in federal court against your former employer.
   • Once you receive the letter, you have 90 days to file suit in federal court.

Filing a Lawsuit against Your Former Employer

1. Find the correct court. If you are filing a breach of contract claim, then you will file in the state court where you were employed. If you are filing a federal anti-discrimination or retaliation claim, then you file in federal district court.
   • If you are suing under state or local anti-discrimination laws or ordinances, then you may file those suits in state court without first going through the EEOC.
2. Draft a complaint. Your attorney should prepare the complaint for you. In the complaint, you will allege (through your lawyer) the facts that give rise to the lawsuit and the laws which authorize the suit.
   • A sample complaint can be found here.
   • Always ask your attorney for a copy of everything filed in court. In this way you can keep track of how attentive your attorney is being toward your case.
3. File the complaint. The complaint must be filed and a filing fee paid. You will likely be responsible for filing fees, even if you are operating under a contingency fee agreement.
   • If you are proceeding without an attorney, take the complaint to the court clerk’s office and say that you want to file. Be sure to bring multiple copies of the complaint and have the clerk time-stamp all of them.
   • If you are filing, then call ahead of time and ask the clerk how much the filing fee is and what methods of payment are acceptable.
4. Serve notice and summons on your former employer. In order to initiate a wrongful termination suit, you must serve notice on your former employer, otherwise the court will not have the ability to hear your case. Service is typically done in a variety of ways: by mail or through the sheriff or a professional process server.
   • To serve through the mail, you must use certified mail, return receipt requested.
   • If you want the notice and summons personally served, then you should use either the county sheriff or a professional process server. In most counties, you can use either. Ask the clerk if either is allowed.
   • If you use personal service, then you must fill out a “Notice of Service” form. It may go by a different name. The purpose of this form is for the server to confirm that service was made. After being signed, it is filed with the court clerk.
   • Your attorney should handle service of process issues. The fee, if any, will have to be paid by you.
5. Participate in the discovery process. Before trial, you and your former employer will go through a process known as discovery, in which you share with each other the documents and information you plan to use to prove your claims at trial.
   • There are three basic stages of discovery: written discovery, document production, and depositions. Your former employer may contact you for a settlement during any of these stages.
   • During written discovery, you and your former employer will exchange written questions known as "interrogatories." You will submit answers in writing in response to the questions you're asked, unless there is a legal reason that your former employer is not entitled to the answer to that question.
   • For example, your former employer might ask you something that actually is protected by attorney-client privilege. In those cases, you would respond by raising an objection that the question asks for information protected by attorney-client privilege.
   • During document production, you may ask your former employer to give you copies of documents that are potentially related to your case. For example, you might ask your employer to give you a copy of your entire personnel file.
   • During depositions, you and your former employer interview each other and any possible witnesses in the case. For example, you may wish to interview the human resources supervisor in charge of recording and processing employee terminations.
   • When you conduct a deposition, the person being deposed is under oath just as if he was in a courtroom, and all questions and answers are recorded by a court reporter.
6. Consider alternative dispute resolution. At any point during discovery, you may decide that an ADR method such as mediation or arbitration would be a preferable means of resolving your problem.
   • Some courts may require parties to attempt mediation or some other sort of ADR prior to setting a date for trial.
   • Mediation uses a neutral third party to help you and your former employer come to a compromise that both of you are comfortable with. Arbitration is more like a simplified trial, with shorter discovery and less strict rules of procedure and evidence.
7. Proceed with your lawsuit. If you do not resolve your claims through mediation or arbitration, you must go to trial. At trial, both you and your former employer will present your evidence and call witnesses to prove your side of the case. The ultimate decision of who's right and who's wrong will lie with the judge or jury.

Video

Template:Video:File a Wrongful Termination Claim

Tips

• The EEOC will work with local or state agencies when you have filed a claim to ensure that you are protected by both federal and state rights.
• You may want to retain an attorney who is knowledgeable about employment law prior to filing a claim the EEOC, and particularly if you are considering filing a separate lawsuit.

Sources and Citations

See also

• Stay Busy at Work
• Verbally Give Two Weeks' Notice
• Give Two Weeks' Notice
• Quit a Job
• Write a Resignation Letter
• Change Jobs
• Calculate California Unemployment
• Live Outside
• Write a Two Weeks Notice
• Quit Your Job Graciously

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