first step with wrongful termination when less than 15 employees

I was wrongfully terminated in retaliation for complaining about unlawful discrimination-I gave written notice to my boss explaining my intent to quit in 15 days if he didn't show some willingness to remedy the situation; he was supposed to respond in writing within those 15 days but he did not and instead just terminated me by simply removing my name from schedule before the 15 days was even up yet naturally he claims that I just quit, thereby denying my unemployment, etc. I want to file a wrongful termination suit but was told that my first step should be to contact the EEOC- but EEOC requires minimum employees to be 15 or more but my employer had only 13, so what do I do?

1 answer  |  asked Jun 15, 2010 05:08 AM [EST]  |  applies to Arizona

Answers (1)

Francis Fanning
You have conflated three different concepts that overlap to some degree but have to be analyzed separately.
First, the concept of wrongful discharge is both broader and narrower than the concept of employment discrimination. Let me explain.
The civil rights laws prohibit certain kinds of discrimination in the workplace, but not all forms of discrimination. Discrimination based on race, sex, religion, color, national origin, age and disability are unlawful. Nepotism, which is a form of discrimination that favors relatives over others, is not unlawful. Any adverse action by an employer can become the basis of a claim of discrimination. A discharge is not the only kind of adverse action that is covered by the civil rights laws, so in that sense the anti-discrimination laws go beyond wrongful discharge. However, these laws generally apply only to employers with 15 or more employees, because smaller employers could be put out of business by one or two discrimination lawsuits. Congress and the Arizona legislature struck a balance that may have left you out in the cold (assuming that your employer actually has only 13 employees, which may or may not be true, depending on how employees are counted).
Wrongful discharge requires a discharge, of course. A demotion or pay cut won't meet that requirement. But there are other reasons besides unlawful discrimination that can make a discharge wrongful. So in that sense the concept of wrongful discharge goes beyond unlawful discrimination. It includes discharge in retaliation for whistle blowing (reporting unlawful conduct), refusing to engage in unlawful conduct and insisting upon exercising certain rights protected by law, such as the right to make a worker compensation claim, serve on jury duty and other specific protected rights.
One way to prove you were discharged is what is known as a constructive discharge. You apparently came across Arizona's constructive discharge statute, which requires an employee to give an employer fifteen days after written notice of intolerable working conditions to correct a problem before the employee can claim a constructive discharge. But there are two things about constructive discharge that are very important to keep in mind. First, the working conditions must be intolerable to a reasonable person. The mere fact that you found them intolerable does not mean that a jury would agree with you that conditions were bad enough to force you to quit. Second, a constructive discharge is just a form of discharge. It is not automatically wrongful. You must prove that the reason for the discharge was something unlawful, like retaliation for whistle blowing or refusing to engage in unlawful conduct. If you were discharged in retaliation for complaining about a form of unlawful discrimination, this would only be a wrongful discharge if the employer was prohibited from discriminating in the first place. So if the employer didn't have fifteen or more employees, it would not be prohibited by the civil rights laws from discriminating, and you would not be protected by those laws. There are two exceptions to this requirement. The Arizona Civil Rights Act prohibits sexual harassment (a form of sex discrimination) regardless of the number of employees an employer has. And the Rehabilitation Act, which prohibits disability discrimination, applies to federal contractors with contracts in excess of $10,000.00, without regard to the number of employees.

posted by Francis Fanning  |  Jun 15, 2010 11:12 AM [EST]

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