What constitute discrimination in a wrongful termination case?

UPDATED: Aug 1, 2010

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What constitute discrimination in a wrongful termination case?

Are there any CA laws that protect someone from discrimination in the event that they were wrongfully terminated from a position for damaging something with cigarettes just because they were the only smoker assigned to that particular task? I understand that “at will” termination is OK here, but if the person did not do what they are accused of, and the only proof the employer has that they did it is because they are a smoker and someone from the company who hired this person out is pointing the finger, isn/t that discrimination of some kind?

Asked on August 1, 2010 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

The only discrimination that is illegal is that which is specifically outlawed. Under federal law, only discrimination on the basis of race, sex, religion, age (over 40), or disability are illegal. California adds a few additional protected categories, including, I believe, sexual orientation. However, neither federal nor state law protects smokers. Unless someone is being fired for a reason protected under law, that firing is not discriminatory.

In the absence of a contract, all employment is employment at will. An employee at will may be fired at any time, for any reason, including mistaken ones (e.g. believing the person did something he or she did not), and without notice. An employer does not need to prove that an employee at will did something before firing him or her, since the employer may terminate the employee at will literally at will.

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