When people talk about “wrongful termination,” they are really talking about wrongful termination in violation of public policy. For a termination to be “wrongful,” it must violate a public policy.
Public policy refers only to acts that are specifically prohibited by a statute (law) enacted by the legislature, not allowed under the state or federal constitution, or prohibited by a regulation promulgated (established ) by a government agency.
Public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status, pregnancy, genetic information, and a few other categories.
Also, public policy prohibits discrimination against people who blow the whistle on a matter of public concern; complain about improper wage and hour practices; refuse to falsify documents (especially reports or certifications to the government); or who exercise voting rights, family leave rights, jury duty rights, domestic violence rights, and more.
To discriminate in violation of public policy means to treat individuals in one group differently from others who are not in the same protected group, but are similarly situated. Thus, an employer cannot change terms of employment or fire you if the reason for the change is against the law. For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.
There are various ways to enforce these rights, depending on the particular public policy involved.
Any response to your particular situation will turn on specific facts. The Avvo board is not set up to handle the kind of detailed analysis needed to offer helpful guidance. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whomever is involved in the dispute can read everything written here.
You will need proof that this is what the supervisor said AND you will need proof that the reason you were let go is because your are not male AND you will need proof the new employee was hired at least in part because he is male.
Your testimony is good evidence about all of this but without evidence from any other source (other witnesses, documents, etc.) the case would amount to your employer saying one thing and you saying the other. I cannot imagine any attorney taking a case like this on a contingency basis, and I cannot encourage you to pursue this case on any basis.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Attorney Spencer has provided you with an excellent response.
To establish a claim for wrongful discharge in violation of public policy, each of the following must be proved: (1) an employer-employee relationship; (2) the employer terminated plaintiff's employment (or took other adverse employment action); (3) the termination of plaintiff's employment was a violation of public policy (or more accurately, a “nexus” exists between the termination and the employee's protected activity); (4) the termination was a legal cause of plaintiff's damage; and (5) the nature and the extent of plaintiff's damage.
Thus, a wrongful termination lawsuit will require you to prove sex discrimination (that the reason you were terminated was because your are not male and that the new employee was hired because he is male).
A proper analysis to your particular situation will depend upon specific facts. Based upon the limited information contained in your question, I don't think you have a very strong case for wrongful termination.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.