“Do I Have an Employment Law Case?”

A “case” is tested by whether you can present the evidence to establish the elements of proof  that the employer’s conduct permits you to recover damages.  One way to think of a “case” is to test the evidence against the legal elements.

Most employment cases fall into three categories:  discrimination; retaliation; and violation of an “implied” contract of fairness and honesty.

The elements of a “whistleblower case” are basically:

1) that you complain about or resist some conduct by the Company, or that the employer anticipates that you will complain;

2) that your complaint is communicated informally or formally, internally or externally to the company, verbally or in writing, to someone in charge;

3) that your complaint goes beyond some trivial issue to a matter of “well established and important public policy”, such as discrimination, harassment, or a crime, 4) that the employer takes action against you because of your complaint or resistance; and 5) that you suffer significant career injury as a result.
A “discrimination case” requires elements to be proven as well. These are:

1) that you are in a “protected category”, such as over 40, or disabled, or on medical leave, or of a certain race, national origin or ethnicity, or any other group identified for protection by statute;

2) that you were qualified for the job and doing your job satisfactorily;

3) that you were replaced in your position (or somehow that someone was “preferred” or given greater opportunity) who was outside the “protected category”;

4) that that preferred person was no more qualified and no better performer than you;

5) that the official reason given by the employer for its adverse action is so patently false and unsupportable by reason or fact as to be considered a lie; and

6) that you have been significantly damaged by the adverse action. Note that this burden of proof does not require that you have proof of a statement by the employer of its intent to discriminate.


“Harassment” is proven by many of the same elements as a discrimination case, but the focus is on how severe or pervasive the employer’s distressing conduct may be. If severe, such as a physical assault, little or no repetition of the conduct is required. If not severe, such as occasional unjustified critical and demeaning comments, or offensive images, the numbers and frequency of the events must be sufficient to create a “hostile work environment”, that is, be pervasive. You must prove not only that you personally found the environment distressing, but that a “reasonable” man or woman in your position would feel that way as well. The degree of distress must be such that it would unduly burden the ability of even a resilient person to work in such an environment. An emotional break-down is not required, nor is proof of medical treatment.


Basic “unfairness” cases are sometimes proven if the Employer followed a long standing policy of fairness that led employees to reasonably expect that “fairness” would be followed in deciding discipline, demotion, transfer or firing. The “policy” may be written, but it may also be inferred from the employer’s established practices of fairness. Length of employment is a factor in expecting this fairness, but even long employments will not by themselves create an “implied contract” for fairness, honesty, and good faith. This “implied contract” is formed by several factors: employer policies, such as progressive discipline or probationary periods, that suggest “fairness”; promises and assurances of job security by the employer; commendation or praise for good work done; the industry practice for job security, and the length of your employment. Sometimes these factors can overcome even a written policy of “at will” employment.

Time Limits: Be aware that the law sets limits on how long you have to file your claims. Failure to file may result in loss of the right to maintain your claim in an Agency or Court. Federal discrimination claims before the EEOC must be filed within 180 days of the discriminatory act. Discrimination claims based on California law must be filed within 1 year of the discriminatory act. Retaliation (whistleblower) claims not connected to discrimination must be filed within 2 years of the retaliatory action. Defamation cases must be filed within 1 year. Other claims have other time limits.

Conclusion: Any reliable evaluation of your potential case requires more than this short summary can provide. A further office or telephone conference often yields information that identifies other potential claims. Call this office to set an appointment. I am available to conduct in depth telephone conferences for those prospective clients living outside Orange County. I am available to litigate cases throughout California, and I will travel as needed to make court appearances for cases of merit.