Risky Terminations and How to Avoid Them

• Citation: Vol. 20 No. 2
• Publication year: 2014
• Author: By Cynthia Elkins

Risky Terminations and How to Avoid Them

By Cynthia Elkins

Cynthia Elkins, Principal of Elkins Employment Law, whose practice provides representation to private sector employers on their personnel and employment law matters including litigation defense, compliance and best practices.

Often an employer wishes to terminate an employee but the fear of being sued will delay the decision in the hopes that the employee will resign. However, a resignation in these circumstances is unlikely and does not prevent litigation as a claim of "Constructive Discharge"¹ could be filed. Constructive discharge occurs when an employer engages in conduct that effectively forces the employee to resign or retire. For this reason, it is imperative that employers review their personnel decisions carefully to evaluate the risks involved and how to avoid them.

Specific "risky" terminations include those where the employees:

• Are members of a "protected classification" (see below);
• Are "whistle-blowers" in that they have reported alleged improper workplace conduct, filed a claim or report against the employer²;
• Have requested, taken, or are returning from a legally provided leave of absence.

PROTECTED CLASSIFICATIONS

Both state and federal law provide protections to certain classes of individuals.

• California Constitution³ provides that a person may not be disqualified from entering or pursuing a business, profession, vocation or employment because of sex, race, creed, color, or national or ethnic origin;
• The Age Discrimination in Employment Act of 1967⁴ provides protection to persons over the age of 40 from adverse employment actions premises upon their age;
• The Federal Americans with Disabilities Act governing employers of 15 of more protected individuals from discrimination on the basis of a disability as defined in the statute⁵; the California Fair Employment and Housing Act (FEHA) prohibits employment discrimination on the basis of "physical disability, mental disability (and) medical condition"⁶;
• 42 USCA § 1981 and Title VII each prohibit racial discrimination in employment⁷; and
• The California Fair Employment and Housing Act (FEHA)⁸ and Title VII of the Civil Rights Act of 1964 (Title VII), as amended⁹, provide the legal framework which prohibits discrimination against applicants and employees based on their "protected classifications".

[Page 21]

"PROTECTED CLASSIFICATIONS" AS DEFINED IN FEHA AND/OR TITLE VII

Race	Color	Creed	Religion	National Origin
Ancestry	Marital Status	Sex (including breastfeeding),	Sexual Orientation	Age (over 40)
Disability (physical or mental, actual or perceived)	Medical condition (including Cancer)	Gender (including actual gender or perception of the sex, identity, appearance or behavior),	Military Status or Veteran Status	Exercising the right to any legally provided leave of absence

Employment decisions including hiring, firing, promotion, demotion, lay off and granting employee benefits may not be based on the protected classification of any employee under either the state or federal legal prohibitions. If an applicant or employee fits into a "protected classification", they can easily assert that the employment decision was improper taking their "protected"...