How to prove wrongful termination

Aug 14, 2019 | Employment Lawsuits, Wrongful Termination

Proving wrongful termination against your employer is a complex process that requires a comprehensive analysis of the individual facts and circumstances relating to the termination. Whether your claim is being litigated within an administrative venue, such as the DFEH, EEOC or Labor Board, or in a civil court or private arbitration, this article will be useful in obtaining a better understanding of the burdens of proof and types of proof and evidence necessary to proving your wrongful termination claim. This article also provides the common defenses put forth by employers in winning wrongful termination lawsuits.

Burdens of Proof and Production of Evidence

The Disparate Treatment and Disparate Impact Theories: 

It is important to understand that a claim of unlawful discrimination under Title VII can be predicated on either of two theories: 

  1. The first theory of liability is based on a claim of “disparate treatment.” This theory generally centers on a claim that an individual has been singled out and treated less favorably than other similarly-situated persons because of his or her race, sex, religion or any other criterion protected by Title VII. Claims predicated on the disparate treatment theory by their very nature require proof of intentional discrimination. Thus, proof of discriminatory motive is critical in such cases, although in some situations it can be inferred from the mere fact of differences in treatment. The disparate treatment theory is the only theory available in claims based on 42 U.S.C. Section 1981, which prohibits racial discrimination.
  2. The second theory of liability under Title VII is based on a claim of “disparate impact,” which is used to challenge practices that are fair in form, but discriminatory in operaton. In contrast to disparate treatment cases, a claim of disparate impact can be established without any proof of intentional discrimination. The theory applies where a business practice that is neutral on its face is shown to have a substantial, adverse impact on some group protected by the civil rights laws. It is now clear that this theory can be used to analyze subjective hiring practices as well as other business practices.

It is also clear that an employer cannot effectively defend a disparate impact claim by demonstrating either “good intent” or the absence of intent. Indeed, the United States Supreme Court has emphasized that the plaintiff in a disparate treatment case under Title VII always retains the ultimate burden of persuasion that an employer’s action is discriminatory. The employer’s burden in such cases is merely one of producing evidence. 

Under Title VII, The Civil Rights Act of 1991 makes it clear that the employer bears the burden of justifying practices shown to have a disparate impact by demonstrating that they are required by business necessity. Its important to note that the theory of discrimination used to challenge an employer’s practice or action may materially affect the burden of proof and the defenses that are available. For example, employers may assert the business necessity defense to a disparate impact claim or the bona fide occupational qualification (“Bona Fide Occupational Qualification”) defense to a disparate treatment claim. It is essential, then, that an employer understand the nature of the theory or theories alleged in order to prepare its defense. 

Burden in Disparate Treatment Cases

The Supreme Court noted that the party claiming discrimination in Title VII actions initially has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. (McDonnell Douglas Corp. v. Green; Texas Department of Community Affairs v. Burdine).  If this burden is met, the employer must then articulate some legitimate, non-discriminatory reason for its action. It need not persuade the court that it was actually motivated by the proffered reason. If the employer’s explanation is satisfactory, the plaintiff may attempt to prove, by a preponderance of the evidence, that the reasons offered by the employer were not its true reasons, but were a pretext for discrimination, and that discrimination was the real reason. Thus, the Court emphasized that the ultimate burden of persuasion in a case alleging intentional discriminatory treatment remains at all times with the person bringing the claim. The employer’s burden is merely one of producing evidence. 

Mixed Motive Cases 

In 1989, the United States Supreme Court described the burdens imposed on a plaintiff and employer in cases where an employment decision results from a mixture of legitimate and illegitimate motives. The Supreme Court held that, in “mixed-motive” cases under Title VII, if a plaintiff proved that a protected characteristic, such as gender, played a motivating part in an employment decision, the employer could avoid a finding of liability only by proving, by a preponderance of the evidence, that it would have made the same decision even if it had not taken the individual’s gender into account. Stated slightly differently, the employer had to show that its legitimate reason, standing alone, would have induced it to make the same decision. The Supreme Court explained that this balance of burdens was the direct result of Title VII’s balance of rights. It characterized the employer’s burden in mixed motive cases as an affirmative defense.

Statutory Changes 

The Civil Rights Act of 1991 overturned one aspect of the Supreme Court’s 1989 opinion by adding a new subsection to Title VII. It provides that an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. The employer may then have a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to the plaintiff. If the employer establishes that it would have taken the same action in the absence of the impermissible motivating factor, a court may not order the employer to hire, reinstate, promote or provide back pay to the complainant. In such cases, a court may grant relief only for the harm that actually results from the unlawful practice. Such relief can include injunctive or declaratory relief, attorney’s fees, and costs.

The Fair Employment in Housing Act Standard

In 2013, the California Supreme Court addressed the standards and remedies that apply under the Fair Employment in Housing Act in mixed motive cases. It held that the proper standard of causation in a Fair Employment in Housing Act discrimination or retaliation claim is “a substantial motivating reason.” When a mix of discriminatory and legitimate reasons motivates the employer’s decision and the plaintiff has shown that discrimination was a substantial factor motivating the termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time. If the employer makes such a “same-decision showing,” the plaintiff cannot be awarded damages, back pay, or an order of reinstatement. However, where appropriate, the plaintiff may be entitled to declaratory or injunctive relief, attorney’s fees and costs.

Burden In Disparate Impact Claims

In addition to claims of intentional discrimination (which are sometimes called “disparate treatment” claims), unlawful discrimination can be established based on the “disparate impact” theory. A claim that an employer’s practice is unlawful due to a disparate impact can arise where a policy or practice that is neutral on its face has an adverse effect on employment opportunities of individuals in a protected group. Subjective hiring practices can be analyzed under a disparate impact model in the same manner as other business practices. A disparate impact case generally involves a three-stage analysis: 

  • Prima Facie Case of Disparate Impact: In order to succeed on a disparate impact theory, a plaintiff must establish a “prima facie” case of discrimination. First, the plaintiff must demonstrate by statistical evidence that the challenged policy or practice, although neutral on its face, has a discriminatory effect on persons of a protected class. 
  • Business Necessity: If the plaintiff is successful in meeting the burden of showing a disproportionate impact on protected persons, the burden shifts to the employer to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. 
  • Alternative Practices: A plaintiff may attempt to prevail in a disparate impact case even if the employer establishes a “business necessity” for the practice in question. If the employer demonstrates that the challenged practice is required by business necessity, the plaintiff has the opportunity to show the availability to the employer of alternate employment practices that would achieve the same business ends, with a less adverse impact.

Fair Employment in Housing Act Standards

The California Supreme Court and many appellate decisions have found that, generally, a job applicant who is denied a job or an employee who is discharged must meet the following elements in order to establish a prima facie case of discriminatory discharge: 

  • That he or she belongs to a protected class; 
  • That he or she was qualified for the position sought or was performing competently in the position held; 
  • That he or she suffered adverse employment action, such as termination, demotion, or denial of an available job; and 
  • Some other circumstance suggests a discriminatory motive.

For example, the last element may be established by evidence that others not in the protected class were retained in similar jobs, and/or his or her job was filled by an individual of comparable qualifications not in the protected class. The specific elements of a prima facie case may vary depending on the particular facts. If a plaintiff establishes a prima facie case, a presumption of discrimination arises that is rebuttable. The employer must rebut the presumption by producing admissible evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer meets this burden, the presumption of discrimination disappears. The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff.

An employer may prevail on a motion for summary judgment if, for example, it can proceed directly to the second step of the formula by setting forth competent, admissible evidence of the nondiscriminatory reasons for its actions. The plaintiff can avoid a summary judgment in favor of the employer in such a case only by pointing to evidence that raises a rational inference that intentional discrimination occurred.

Business Judgment

Its necessary for a plaintiff in a discrimination case to show discrimination, not just that the employer’s decision was wrong, mistaken or unwise. As one court has stated, an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. The employer’s stated legitimate reason does not have to be a reason that a judge or jurors would act on or approve. The employer is allowed to exercise its business judgment without second guessing. 


Both the Fair Employment in Housing Act and Title VII recognize defenses to certain types of discrimination. The applicability of a particular defense may depend in part on the theory of discrimination, i.e., intentional discrimination or disparate impact, used to challenge an employer’s policy, practice or decision. If applicable, the existence of a legal defense may make permissible a practice or employment-related action that would otherwise be unlawful. This is illustrated by a practice that, although discriminatory and ordinarily unlawful in the absence of a defense, is justified by a business necessity. 

Other defenses may not “justify” a particular practice, but may nevertheless enable an employer to evade liability for the practice. An example of the latter kind of defense occurs where a plaintiff’s claim is filed with the administrative agency or court after the time allowed for filing such a claim has expired. Similarly, an employer may be able to defend a claim successfully where the agency or court in which an action is commenced lacks jurisdiction over either the employer or the subject matter of the allegations. 

Employers should carefully evaluate all discrimination claims and consider any possible substantive or procedural defenses they may have to combat such claims. However, they should not assume that defenses will be available when formulating policies simply because a potential defense seems to fit a particular situation. Indeed, employers are strongly advised to consult with legal counsel before relying upon a defense they believe may be available to justify a practice, test or screening procedure that appears discriminatory, e.g., the use of all-male or all-female nurse aides, sales personnel, flight attendants, servers, bartenders, cooks or hosts. The job applicant or employee who alleges unlawful discrimination must carry the burden of proving either that the challenged employment practice intentionally discriminates in an impermissible manner (e.g., based on sex or race) or that it has a discriminatory effect. 

The employer bears the burden of establishing the availability of and proving the requirements of any defense. Although it is not possible to list each of the defenses potentially available to an employer in a given situation, the following defenses should be evaluated:

  • Actions Justified By Legitimate, Nondiscriminatory Reasons
  • Bona Fide Occupational Qualification
  • Business Necessity
  • Reasonable Factors Other Than Age
  • Job-Relatedness
  • Affirmative Action Plans
  • Specialized Defenses
  • Equal Pay Act Defenses
  • Effect of State Court Decisions
  • Avoidable Consequences Doctrine
  • Other Defenses

Actions Justified By Legitimate, Nondiscriminatory Reasons

As noted above, a job applicant or employee must meet the burden of proof in establishing employment discrimination. An employer can seek to defend itself against such a claim by attacking the plaintiff’s argument that the challenged action was discriminatory. In a disparate treatment case alleging a discriminatory failure to hire or promote, the employer can defend its actions by providing evidence that the plaintiff was either not qualified for the job or was less qualified than the individual who was hired or promoted. Employers can also create a strong inference that there was no discriminatory motive by establishing that the same person was responsible for both the hiring and firing of a plaintiff in a case alleging a discriminatory discharge. This is called the “same actor inference.” A disparate treatment case should not succeed where an employer has a legitimate, nondiscriminatory reason for its action. Thus, a final decision-maker’s wholly independent, legitimate decision to terminate an employee can insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have an employee fired. 

Bona Fide Occupational Qualification

Title VII, the Fair Employment in Housing Act, and the Age Discrimination in Employment ActActexplicitly recognize the Bona Fide Occupational Qualification defense to claims of employment discrimination. Employers often attempt to utilize the Bona Fide Occupational Qualification defense where they maintain a practice that, on its face, excludes from an employment opportunity an entire group of persons on a basis protected by the law (e.g., all women). The cases demonstrate that it is extremely difficult to provide an absolutely clear definition of the Bona Fide Occupational Qualification defense. The Fair Employment in Housing Commission regulations make it available where the employer can “prove that the [discriminatory] practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.” The “safety and efficiency” requirement, to the extent upheld by courts, will substantially limit the number of situations in which the defense will be available. Furthermore, the Bona Fide Occupational Qualification defense is not available in cases involving discrimination based on an individual’s race or color. The Fair Employment in Housing Act has been amended to incorporate a clear standard for religious corporations that employ persons to perform religious duties. Religious corporations may restrict eligibility for employment in any position involving the performance of religious duties to adherents of the religion for which the corporation is organized. 

Business Necessity

In contrast to the Bona Fide Occupational Qualification defense, the business necessity defense originally had no specific basis in Title VII or the Fair Employment in Housing Act. The business necessity defense evolved from court decisions as a defense to claims that facially neutral employment practices have discriminatory effects. Moreover, although it has been found closely related and somewhat similar to the Bona Fide Occupational Qualification defense, the two are not identical. Indeed, the Bona Fide Occupational Qualification defense is applicable to cases involving allegations of intentional discrimination whereas the business necessity defense is asserted in disparate impact cases. Although the business necessity defense is more lenient for the employer than the Bona Fide Occupational Qualification defense, it is extremely difficult to define based upon existing case law.

Reasonable Factors Other Than Age

The Age Discrimination in Employment Act creates an exemption for employer actions that are “otherwise prohibited” but “based on reasonable factors other than age.” The Supreme Court has made it clear that the plaintiff in a disparate impact case is obligated to isolate and identify the specific employment practices that are allegedly responsible for any observed statistical disparities. This prevents employers from being found liable for the numerous of innocent causes that may lead to statistical imbalances. If a plaintiff does so, an employer seeking to defend a disparate impact claim on the basis of Reasonable Factors Other Than Age must produce evidence raising the defense and persuade the fact finder that the defense is meritorious.


The Fair Employment in Housing Commission regulations state that certain testing devices that operate in a discriminatory manner may be lawful if job-related. According to the regulations, a testing device or other means of selection that is neutral on its face, but that has an adverse impact on persons protected by the Fair Employment in Housing Act is permissible only upon a showing that the selection practice “is sufficiently related to the essential function of the job in question to warrant its use.” Where the requirements of the defense exist, it may be used to justify height or weight standards as well as other selection devices. This is similar to the business necessity defense in several ways. Indeed, it is often used to denote the existence of a business necessity defense where a policy or practice has an adverse impact on employment opportunities of individuals in a protected class. It is recognized under Title VII as well as the Fair Employment in Housing Act.

The Fair Employment in Housing Commission regulations also recognize the exemption where security regulations established by the State of California provide the impetus for the discriminatory practice. 

Affirmative Action Plans

The Equal Employment Opportunity Commission and the Fair Employment in Housing Commission encourage employers to implement voluntary affirmative action plans to improve opportunities for women and minorities. For this purpose, affirmative action is described in Equal Employment Opportunity Commission guidelines to include those actions appropriate to overcome the effects of past or present practices, policies or other barriers to equal employment opportunity. The Equal Employment Opportunity Commission guidelines permit voluntary affirmative action and afford protection against liability to those who take such action. Both the Equal Employment Opportunity Commission guidelines and the Fair Employment in Housing Commission regulations provide that discrimination that occurs as a result of the implementation of a bona fide affirmative action plan (so-called “reverse discrimination”) may be lawful.

Specialized Defenses

In addition to the general defenses applicable to most forms of discrimination, certain discrimination claims introduce specialized issues and specialized defenses. For example, a claim of religious discrimination may be based upon an allegation that the employer failed to make reasonable accommodations to the religious practices of an applicant or employee. Where reasonable accommodations are required in the context of religious discrimination or other discrimination claims, such as disability discrimination, an employer can attempt to defend the practice in question by showing that the accommodation suggested would result in an undue hardship. 

Equal Pay Act Defenses

To be viable, an equal pay claim must be premised on an employer’s failure to provide equal pay without regard to sex for equal work performed under similar working conditions on a job requiring equal skill, effort, and responsibilities. Consequently, an employer may attempt to defend itself against such a claim by demonstrating that the positions in question do not involve equal skill, effort or responsibilities.

Effect of State Court Decisions

The United States Supreme Court has concluded that a federal court must afford full faith and credit in a Title VII suit to a state court’s determination in a review of a state administrative decision.108 Consequently, an employer can contend that a favorable state court decision bars a subsequent action under Title VII. 

Avoidable Consequences Doctrine

Under the avoidable consequences doctrine, a person who is injured by another individual’s wrongful act will be barred from recovering damages that could have been avoided by reasonable efforts or expenditure. The California Supreme Court has recognized the applicability of the doctrine to employment cases, including sexual harassment cases under the Fair Employment in Housing Act.

Other Defenses

Crosner Legal, P.C. does not purport to provide an exhaustive list of all defenses applicable to discrimination claims. Indeed, employers are advised to carefully research and examine all defenses potentially applicable to each claim, and consult an attorney when necessary.

Common Occurrences For Employees in California – You May Be Entitled To Further Compensation

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