Virginia is an at-will state. This means that an employee or employer may terminate the employment at any time without cause. An employer does not need a reason to terminate the employment contract. However, there are some instances in which an employer cannot simply terminate an employee. An employer may not terminate an employee for an illegal reason such as discrimination or retaliation. If an employee is fired under one of these instances, this is known as wrongful termination.
Wrongful termination usually occurs when an employer fires an employee for a discriminatory reason such as race, color, religion, gender or national origin, all of which are protected by Title VII of the Civil Rights Act of 1964. There are other factors such as age and disability that are protected under other federal statutes. If an employer fires an employee for his religious beliefs and/or observances, the firing would constitute grounds for a wrongful termination lawsuit. If an employee with a disability is terminated without cause, this could be considered a wrongful termination. In another instance, if an employee is subjected to unwanted sexual advances from her supervisor, reports the action to Human Resources, and is later terminated without cause, this could be a form of wrongful termination in the form of a retaliatory action.
If an employee believes that he/she has been wrongfully terminated for discrimination, there are a few questions that he/she must address before seeking legal action. The employee must determine if there was a discriminatory reason for the firing. This can be established through actions or statements, oral or written, by management. Additionally, the employee may want to investigate whether there is a pattern of the illegal behavior. The employee may look into whether there have been similar instances of the prohibited conduct with other employees.
In addressing retaliatory actions, an employee should address certain questions before seeking legal action. First, the employee must ask whether he/she reported the inappropriate behavior to management. The employee must then review what response he/she received from management or human resources. The response from management or human resources can vary depending on the specific case. In some instances, the employer may require the employee to comply with company policies to conduct its investigation.
If an employee believes he/she has been wrongfully terminated, he/she should document all of the actions taken by themselves and the employer prior to and after the termination. This will assist the employee in creating a timeline, which is critical to a wrongful termination case. The employee should file a claim with the Equal Employment Opportunity Commission (“EEOC”) office in their geographical area. The EEOC will determine whether they have a “right to sue” based off the information provided. If the EEOC finds that the employee’s claim is not valid, the employee’s case does not end. The employee may still seek legal counsel and be advised of their rights and potential remedies.
Stephanie J. Pough is an attorney with the law firm of Eric O. Moody and Associates, P.C. which has offices in Portsmouth and Chesapeake, Virginia. The firm broadcasts “IT’S THE LAW,” a weekly legal question and answer talk show on Hampton University’s radio station, WHOV 88.1 FM. The firm’s website is WWW.EOMOODYLAW.COM