Elements of a Wrongful Termination Lawsuit

Learn what you have to prove to win a wrongful termination case.

Have you lost your job under suspicious circumstances? If so, you might have a wrongful termination lawsuit. Wrongful termination refers to any illegal reason for a termination. Federal, state, and local laws prohibit employers from firing employees for certain reasons, including those that are discriminatory, violate an employment contract, or are in retaliation for the employee exercising a legal right.

Of course, just because your firing was unfair doesn't make it illegal. For example, there's no law against nepotism in the workplace. Your boss could fire you to make room for a family member, and you wouldn't have a wrongful termination case. There has to be a specific law that makes the reason for your firing illegal. This article explains three of the most common grounds for a wrongful termination case: breach of contract cases, discrimination cases, and retaliation cases.

Breach of Contract

In the United States, the vast majority of employees work at will. This means they can quit at any time, and they can be fired at any time, for any reason that isn't illegal. Many employees mistakenly believe that their employers must have a good reason -- called "good cause" -- to fire them. Generally speaking, though, this isn't true. As long as you work at will, your employer can fire you for a silly reason, an unfair reason, or no reason at all, as long as there's no law prohibiting it. For example, an at-will employee can be fired for being a poor fit, because of the employee's taste in music, or because of the employee's odd habit of humming in the hallways.

Not all employees work at will, however. If you have an employment contract that limits your employer's right to fire you, you are no longer an at-will employee. If you are fired for reasons that are not allowed by your contract, you might have a breach of contract claim. An employment contract is most often written, but it can also be oral (discussions between you and your employer) or implied (based on the actions of you and your employer). To learn more about written, oral, and implied employment contracts, see Lawsuits for Breach of Employment Contract.

To win a breach of contract claim, you must prove all of the following:

  • You had an employment contract limiting the employer's right to fire you. A true employment contract will typically state that your employer can fire you only for "good cause." Many employees have written contracts for at-will employment, which just reinforces the employer's right to fire for any reason, at any time. You will have to show that your employment contract actually changed your at-will status.
  • You held up your end of the deal. You must show that you fulfilled your obligations under the contract (called "performance"). For example, if your employment contract said you would not be fired for one year as long as you completed all of the company's financial reports on time, you would have to show that you had done what you promised.
  • You were fired under circumstances that breached the contract. For example, if you had an agreement with your boss that you would not be fired until the company completed its restructuring, and you were in fact fired months before the reorganization was complete, you would satisfy this requirement.
  • You suffered damages as a result of the breach. You must show that you suffered some type of harm as a result of the termination, usually in the form of financial loss. In a breach of contract case, you would be entitled to the wages, benefits, and other job perks you would have earned, had your employer not fired you.

Discrimination Cases

All employees, even at-will employees, may not be fired for discriminatory reasons. Under federal law, employees may not be fired because of their race, color, national origin, sex, religion, disability, age (if the employee is at least 40), citizenship status, pregnancy, or genetic information. State laws are often more protective, including additional protected characteristics, such as sexual orientation. (To find out your state's rules, select it from the list at State Wrongful Termination Laws.)

To win a discrimination case, it typically isn't enough to show that you were fired and employees who don't share your protected trait were not. Rather, you must show that you were fired because of your protected trait. For example, there might be many perfectly valid reasons why a company might fire a female manager while retaining a male manager. However, if the company fired the female manager because of gender stereotypes, such as thinking she should spend more time at home with her kids, that would be discriminatory.

You must prove all of the following in your discrimination case:

  • You were a member of a protected class.
  • You were qualified for the position.
  • You were fired.
  • At least one employee who doesn't share your protected class was not terminated.
  • It's more likely than not that the decision was based on your protected class.

Of course, that last requirement can be very difficult to prove. Evidence of a discriminatory motive might consist of statements ("In my experience, women don't tend to return to work once they have babies."); statistics (nine out of ten people laid off were women); or policies (for example, physical job requirements that might unfairly exclude female employees or applicants).


    To prove retaliation, you must show that you were fired because you exercised a legal right. Some common grounds for a retaliation claim include being fired for: filing a discrimination or harassment complaint, requesting or taking FMLA leave, complaining about workplace safety, filing a workers' compensation claim, engaging in union organizing activities, and so on.

    To win a retaliation case, you must prove all of the following:

    • You engaged in a legally protected activity.
    • You were fired because of your protected activity.
    • You suffered a negative job consequence as a result of the employer's action (in other words, you were fired and lost wages, benefits, and so on).

    Often, timing is the key to proving a link between your protected activity and your firing. For example, if you had a stellar performance record and were fired three days after filing a complaint of discrimination, that would be strong evidence that your employer didn't fire you for performance problems, but rather due to your complaint.

      What to Do Next

        If you believe your firing fits into one of these categories, or if you feel like you were fired for other illegal reasons, you should consult with an experienced employment attorney right away. An attorney can review the facts, explain which legal theories might fit your situation, and help you decide how best to proceed.

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