Wrongful Termination in California

In California, an employment relationship is presumed to be “at-will.” This means that the employment relationship may be ended by either the employer or the employee, at any time, and for any lawful reason, or for no reason at all. (Lab. Code § 2922.) However, the employment relationship is not “at-will” if the employee proves that the parties, by words or conduct, had an agreement that the employer’s power to terminate would be limited in some way. (Haycock v. Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473, 1488.)


As such, a finding of wrongful termination must be found through proving that the employee was (1) terminated for an unlawful reason, or (2) terminated in violation of the employment contract or agreement. This blog will touch upon some of the unlawful reasons that an at-will employee may have been fired for, and the damages, or money, that the employee may seek.

1. Wrongful Discharge in Violation of Public Policy

Generally, a violation of public policy occurs when the employee (1) refused to violate a statute; (2) performed a statutory obligation (3) exercised a statutory right or privilege; or (4) reported an alleged violation of a statute of public importance.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090–1091.) “[Discharge because of employee’s] [r]efusal to violate a governmental regulation may also be the basis for a tort cause of action where the administrative regulation enunciates a fundamental public policy and is authorized by statute.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 708–709.) Moreover, “an employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.)

2. Constructive Discharge in Violation of Public Policy

This cause of action is similar to that explained above. However, “constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244–1245.) The employee is required to prove that she was required to violate public policy or that she was required to endure intolerable conditions that violate public policy.

3. Retaliation for Whistleblowing (Lab. Code § 1102.5.)

The whistleblower protection statute of the Labor Code prohibits retaliation against an employee who, or whose family member, discloses information about, or refuses to participate in, an illegal activity. (Lab. Code, § 1102.5(b), (c), (h).) Liability may be predicated on retaliation by “any person acting on behalf of the employer.” (Lab. Code, § 1102.5(a)−(d).) Section 1102.5, subdivision (b), concerns employees who report to public agencies. It does not protect plaintiff, who reported his suspicions directly to his employer.


4. Discrimination - Disparate Treatment (Gov. Code § 12940(a).)

Disparate treatment occurs when an employer treats an individual less favorably than others (employee was discharged, demoted, or suffered any other adverse employment action) because of the individual’s protected status. This cause of action, and those listed below, are used when the employer is a covered entity under the Fair Employment and Housing Act. A FEHA “Employer” includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities. “Employer” does not include a religious association or corporation not organized for private profit. (Gov. Code § 12926.) Other covered entities under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (Gov. Code, § 12940(a)–(d).)

5. Discrimination - Disparate Impact (Gov. Code § 12940(a).)

Disparate impact occurs when an employer has an employment practice that appears neutral but has an adverse impact (employee was discharged, demoted, or suffered any other adverse employment action) on members of a protected group and cannot be justified by a business necessity. (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1405.)


“ ‘To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that “any given requirement [has] a manifest relationship to the employment in question,” in order to avoid a finding of discrimination . . . Even in such a case, however, the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination.’ ” (City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985.)

6. Retaliation (Gov. Code § 12940(h).)

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action (the employee was discharged, demoted, or suffered any other adverse employment action), and (3) a causal link existed between the protected activity and the employer’s action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

7. Disability Discrimination – Disparate Treatment (Gov. Code § 12940(a).)

“[T]he plaintiff initially has the burden to establish a prima facie case of discrimination. The plaintiff can meet this burden by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.


The prima facie burden is light; the evidence necessary to sustain the burden is minimal. As noted above, while the elements of a plaintiff’s prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)


8. Disability Discrimination – Failure to Accommodate (Gov. Code § 12940(m).)

“There are three elements to a failure to accommodate action: ‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193–1194.)


“Under the FEHA, ‘reasonable accommodation’ means ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’ ” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “Reasonable accommodations include ‘[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . and other similar accommodations for individuals with disabilities.’ ” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.)

9. Disability Discrimination – Failure to Engage in Interactive Process (Gov. Code § 12940(n).)

“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)


“The point of the interactive process is to find reasonable accommodation for a disabled employee, or an employee regarded as disabled by the employer, in order to avoid the employee’s termination. Therefore, a pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243–244.)


10. Damages

The damages, or money, that an employee may be entitled to after suing the employer based on the aforementioned causes of action vary. However, generally speaking, the damages for a wrongful termination case include lost wages and benefits, back pay and wages, compensation for emotional distress and pain and suffering from losing employment, attorneys fees, and possibly punitive damages that are meant to punish the employer for its wrongdoing.


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