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FAQ's - Wrongful Termination of Employment

1. What is wrongful termination of employment?

"Wrongful termination" is not really a legal term - it is used and often misused to encompass a variety of situations in which an employee has been dismissed from employment. In Colorado, as in most states, employment is presumptively "at will," which means that an employer may discharge an employee at any time for any reason and, correspondingly, an employee may quit the employment at any time for any reason. However, certain reasons for dismissing an employee are illegal and a violation of the employee's rights. Such reasons include discrimination on the basis of gender (including pregnancy), race, national origin, age, disability and religion. It is also illegal in Colorado to terminate an employee for making a workers' compensation claim, serving on a jury, or for refusing to comply with an illegal directive of the employer. These are just some examples of exceptions to the employment at will presumption.

2. How do I know if I have been terminated illegally?

Probably the best way to determine whether you have been illegally terminated is to consult an attorney. You may also contact the Equal Employment Opportunity Commission or the Colorado Civil Rights Division on your own. You should keep in mind that there are laws governing when you must file a charge or complaint and where that complaint must be filed. In Colorado, and in other states having a state civil rights division that is empowered to work jointly with the EEOC, a charge must generally be filed with the EEOC no later than 300 days of the discrimination. However, it is always better practice to file well before the deadline, preferably as soon as the discrimination has occurred but after the employee has attempted to resolve the matter internally with the employer.

3. What kinds of discrimination are illegal?

"Discrimination" like "wrongful termination" is a term that is often misunderstood. Only discrimination defined by law is actionable - it is not illegal to treat one worker better than another unless that treatment is motivated by race, national origin, gender, religion, age or disability (as defined by the A.D.A.) or some otherwise legally protected category.

4. Am I protected against retaliation from my employer if I complain of discrimination?

In most situations, an employer who retaliates against an employee who files a legally valid complaint of discrimination based upon national origin, gender, religion, age or disability (as defined by the A.D.A.) may be liable for a separate and distinct violation of the civil rights act.

5. What laws protect employees against discrimination?

The most often utilized law is Title VII of the Civil Rights Act, which prohibits employment discrimination based upon race, color, religion, gender and national origin. However, there are other laws as well, including the following: the Equal Pay Act, which prohibits wage discrimination between men and women performing substantially similar work; the Americans with Disabilities Act (ADA), which prohibits discrimination against workers who are legally defined as disabled; the Rehabilitation Act which prohibits discrimination against federal workers who are disabled; the Age Discrimination in Employment Act (ADEA) which prohibits discrimination against older workers (defined as 40 years of age or above); and the Civil Rights Act of 1991 prohibiting intentional employment discrimination of workers on the basis of race and national origin.

6. What to do if you feel you have been a victim of discrimination at your place of work?

First and foremost, read your employee manual to determine the procedures that are set up by your employer. Secondly, make sure you file a complaint with your employer pursuant to those procedures. You may skip the first step only if your employer has no policy or procedure; however, never skip the second - always document your complaint, have your documentation filed with your personnel file and, if possible, have an impartial witness available to observe that you handed the document to the appropriate human resources official.

7. What should an employer do upon receiving a complaint of discrimination?

The employer is required to make a reasonable investigation into the facts and circumstances surrounding the complaint and to take reasonable steps to remedy the problem if a problem is substantiated.

8. Should I quit because I feel my employer is not being responsive to my complaints?

Voluntarily resigning employment is rarely advisable, at least as it impacts legal remedies. To be able to recover lost back pay, or, for that matter, lost front pay, an employee must prove (s)he was illegally terminated by the employer. "Constructive termination" is the legal name for a discharge which has been forced upon the employee by the working conditions. However, the standard for proving "constructive termination" is extremely high: the employee must prove that, by objective standards, the work place had become so intolerable that no reasonable person could be expected to remain in employment. Mere discomfort, even on a daily basis, is not sufficient. If at all possible, an employee should try to remain on the job even when that means having to put up with an uncomfortable situation. Assuming there is liability on the part of the employer, an employee who quits may be severely limiting his/her potential damages.

Keith CrossJoe Bennett
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