Frequent Reasons For Unlawful Employee Termination
Frequent Reasons For Unlawful Employee Termination

When a person suspects that their termination was unlawful, they may not be sure of what the actual illegal reason behind it is. You're not always going to be told why you were fired, as employers often are not required to provide or disclose a reason at the time of your termination. While there is usually an official reason given-for the sake of formality with paperwork and documentation, and which may be disclosed to the employee when needed-it may not make any sense or it may be vague. Not knowing the truth or having an idea of what the possible truth might be can make it difficult to determine the legality of your termination, as discussed in the previous lesson.

This article will look at what the actual reason(s) for an unlawful termination might be. These are some of the more common explanations for what actually is going on versus what you might have been told. Topics will include warning signs to look for with each reason and what needs to be done to help prove unlawful termination. Some examples of reasons for your termination that you may be given instead, which may alert you that something is wrong, and what they can mean in your efforts to prove your termination was unlawful.

What You Might Be Told Instead

When employers terminate someone based on unlawful or illegal grounds, they often will give a different explanation in order to hide the real one and to avoid punishment. This is often referred to as pretext, which is defined as misleading behavior or excuse(s) designed to cover or conceal true intentions.1 The key factor with pretext is the employer needs to be aware that what they are doing is wrong and that the explanation they are giving is false. It also helps if employee is able to tell that what they are being told is a lie, which can be difficult because some may be unaware or oblivious about the true state of their performance and behavior. You may think that you work well with others and that your employer's reasoning for your termination of "you're not a team player" is pretext, but your co-workers might not agree with you.

That example is just one of the things that you might be told, so long as it doesn't match with what is known to be true about you (e.g. your co-workers actually do get along very well with you). Pretext for illegal termination may be something along the lines of claims of poor work performance or that you don't fit in with the company's values.2 Things like cutbacks, and internal reorganizing or restructuring are also not uncommon. These are usually purposefully vague without a clear explanation as to why you specifically are being terminated. Even when it is somewhat specific, it may not make sense once you apply facts or reality to the situation. Being fired for being unqualified or lacking the necessary skills for your job, for example, when you do in fact have those qualifications and skills, and maybe even more qualified than some of your peers in the same position.3 In those instances, proving that the explanation was pretext often requires evidence to the contrary that can back up your claims of unlawful termination.


Discrimination of any kind in the workplace is unfortunately common. In the 2016 fiscal year, the EEOC received a total of 91,503 discrimination charges that were reported to them throughout the country.4 That includes discrimination based on things such as race, religion, sexual orientation, and disability as well as discrimination that occurred through business practices like hiring, termination, and pay, and general treatment or harassment. Not counted in that are any instances that were only reported at the state or local level and cases that went unreported.

Due to anti-discrimination laws, termination based on discrimination is highly illegal. An employer who is firing someone based on discrimination may offer pretext or withhold their reason because they know that there are likely to be serious consequences for their actions. They may also have prejudices that are based in discrimination that they may try to justify with an additional reason in an attempt to make an unlawful termination lawful. The inclusion of discrimination in other unsavory workplace behavior like bullying or harassment-which requires a justifiable explanation as to why the person was targeted-can legitimize any claims of unlawful termination when such behaviors are involved.5


Interested in learning more? Why not take an online Lawful Employee Termination course?

Punishment for doing something like reporting illegal activities in the workplace (a.k.a. whistleblowing) or doing something that you have every legal right to do is considered retaliation.6 Even speaking out about something in the workplace, like harassment directed at yourself or a colleague, can cause retaliation. This can include things like being harassed or increased harassment, unexplained negative impacts to your pay or benefits, threats, termination, and other adverse behavior directed at you. It can be subtle sometimes, but there is usually at least one instance where the retaliation is obvious-being fired or demoted shortly after filling a complaint against your supervisor, for example.7

Now there may be instances where being punished or terminated shortly after doing something like whistleblowing is just an unfortunate coincidence. It depends on how soon the punishment is implemented after your actions, as timing is a significant source of evidence for retaliation. If you report a safety violation to OSHA, for example, and are fired a few hours later, then you have to consider how much time it would take for OSHA to notify your employer of your report in order to view your termination as retaliation. Maybe your employer had already decided to fire you for a completely legitimate reason before you even filed the report and/or did not know that you had done so. Maybe they realized you knew about the violation and were trying to terminate you in an effort to stop you from reporting it, which would constitute retaliation. The timing may be enough to raise suspicions about the legality of your termination, but you need to address all the factors involved to prove unlawfulness.
Violation of Rights

It's been established that employees have rights that they are legally allowed to exert in the workplace, such as the right to privacy or to have a safe working environment. As a result, employers by law are not allowed to impinge upon these rights or punish an employee for asserting their rights.8 Any punishment that is directed at an employee may be considered retaliation, as mentioned above. However, the punishment itself may violate their rights as well, even if there is justifiable reasons for the punishment. Violating an employee's right to privacy, for example, while investigating claims of wrongdoing can invalidate the entire process. If you fire Tim for stealing inventory, but only proved that he was doing so by breaking into his car and finding the stolen products, then Tim may be able to contest his termination as unlawful because you violated his legally given rights. Now if you catch Tim in the act of stealing inventory via security cameras placed in the business, then you're not violating his privacy so long as those cameras are not in places like the bathroom.

False Accusations and Defamation

There are some instances where an employee is unlawfully terminated because they are made into the scapegoat for someone else's actions. There may be elements of favoritism (which isn't illegal) or self-incrimination that causes an employer to protect someone by shifting the blame to another person. False accusations of wrongdoing can also come from peers and other co-workers, who may have questionable motivations for doing so. Any false statements they make to your employer, especially if the goal is to get you fired or otherwise punished, can be considered defamation and grounds for rendering your termination unlawful.9

Determining if your termination was the result of false accusations and/or defamation usually requires looking at the reasoning and evidence given to support your termination. Pretext in these kinds of cases is very important because it is the biggest warning sign, and there's often something noticeably wrong (to you) about it. The evidence itself might have been faked to implicate you or you have evidence that strongly contradicts it. For example, someone steals or destroys company data from your computer but you were at a doctor's appointment when it happened. Or witnesses who back up an accusation with a lie are unable to keep their stories straight or make errors.

Contract Violations

When contracts are involved in an employee termination, they can provide solid evidence of what is considered lawful based upon the terms of the agreement. Written contracts usually are better than oral or implied contracts because the entire thing has a physical presence that can be analyzed. All parties who have signed the contract are legally bound to its terms, and any breaches of those terms that contributed to a termination can cause the termination to be deemed unlawful.10 Usually the employer and the employee, as well as the business' legal department or HR, will have copies of the contract that they can refer to. This means that anyone with a copy can submit it as evidence of a suspected breach, and legally use it in their argument for or against an unlawful termination.

Policy Violations

An employment termination can be rendered unlawful should the reasoning violate any kind of policy, either public or company based. Public policies vary from state to state, but they usually deal with things that may be viewed as morally wrong.11 This can include things like legal rights and ethics, which often influence laws and actions to begin with. Most company policies need to be in line with those public policies, so being fired based upon a contradictory company policy could be grounds for unlawful termination. This means that they need to be kept up to date and accurate to ensure the legitimacy of a violation or compliant behavior. Changes in public policy usually means that any policies the company has in relation need to be changed as well; fail to do so and any application of that policy may be deemed illegal or unlawful based on the public policy that supersedes it.

Mishandling the Termination Process

Screwing up any part of the termination process is usually seen as a major threat to the legitimacy of its outcome. This can include anything from unnecessary delays, lack of or poor documentation, failing to investigate immediately, or not following basic procedures.12 Things that should have been done or otherwise included but weren't could have resulted in a completely different outcome. Excluding things, either accidentally or intentionally, could shift the final decision in the process away from what it should be. The reasoning an employee receives for their termination could be legitimate and justifiable, but it may not have been enough under the circumstances due to errors in the termination process. Firing someone based on a performance review, for example, is considered an acceptable reason only when its findings are supported with additional information. Excluding or failing to get that information during the termination process, especially if this is the person's first bad review, doesn't add any weight to that reasoning and it can easily be dismissed should the termination be contested.
Refusal to Comply with Inappropriate Demands

There is only so much that an employer can request of their employees, not just in terms of the law, but in regards to public policies and practicality as well. An employee cannot be told to do something that may be viewed as illegal or in violation of laws or agreements and be punished for refusing to do it.13 Making them to do something under threat or force and then firing them for it later on also isn't acceptable because they did so under duress from you, their employer/supervisor/manager/etc. Refusing demands that may be more unreasonable rather than inappropriate or illegal isn't acceptable either. Things like constantly making them stay late or having them do things that are not their responsibility can be viewed as unreasonable, especially if you are not properly compensating them for the overtime or the risk of liability. It is entirely within their rights to refuse to do something that they deem is unreasonable, unsafe, or inappropriate and not be punished for doing so.