Labor and Employment

What Are Illegal Reasons for Firing?

By Sachi Barreiro, Attorney, University of San Francisco School of Law

Wrongful termination cases that are not based on an employment contract typically fall into one of two categories:

  • being a member of a protected group, or
  • taking a protected action.

Member of a Protected Group

Employees cannot be fired for having certain characteristics or attributes. Federal law protects the following:

  • race
  • color
  • gender
  • pregnancy
  • national origin
  • age (employees who are 40 and older only)
  • disability
  • religion
  • genetic information, and
  • citizenship status.

These laws apply to employers with 15 or more employees—except for citizenship status (four or more employees), national origin (four or more employees), and age (20 or more employees).

Many states and cities have similar laws that apply to smaller employers or that protect additional characteristics. Depending on where you work, it might be illegal to fire you based on:

  • sexual orientation
  • gender identity
  • marital or familial status
  • age (18 and older)
  • military status
  • physical appearance
  • criminal history
  • HIV/AIDS
  • political affiliation
  • status as a domestic violence victim, or
  • being homeless or unemployed or receiving public assistance.

Taking a Protected Action

Federal and state laws often protect employees from being fired for exercising a legal right. For example, under federal law, it is illegal to fire employees for:

  • filing a discrimination or harassment complaint
  • filing a minimum wage or overtime claim
  • taking leave granted by a federal law (such as the Family and Medical Leave Act)
  • reporting a workplace safety violation to the Occupational Safety and Health Administration, or
  • reporting corporate fraud to the Securities and Exchange Commission.

Many states have similar laws that make it illegal for an employer to fire an employee for taking these actions under state law—for example, taking leave granted by state law (such as paid sick leave) or reporting a safety violation to a state agency. In addition, many states also protect the following actions:

  • filing a workers’ compensation claim
  • reporting company activity that is illegal or threatens the public safety (for example, employees who report abuse in nursing homes)
  • refusing to participate in illegal conduct, and
  • participating in lawful off-duty conduct (such as drinking alcohol or attending a lawful protest).
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