Protecting Your Business from Wrongful Termination Lawsuits


By: Arthur Ehrlich

Employees who believe they were terminated unfairly or without prior warning are likely to file a lawsuit. Although Illinois is an “at-will” employment state, an employer cannot terminate employees based on disability, sex, pregnancy, race, or any other “protected” classification.  A failure to treat an employee fairly may create a perception of discrimination which can lead to expensive litigation even if the employer feels the termination was warranted.

While an employer may believe there are strong reasons for termination, discrimination is often based on circumstantial evidence. For example, you may believe you terminated a female employee for chronic absenteeism, but she may believe it was due to her race or gender, especially if Caucasian male employees had several absences and were not terminated. An employer may terminate an older employee for low productivity not knowing that there may be good reasons for this, while younger employees with productivity issues remain at work.

Employers cannot eliminate the risk of a lawsuit, but certain steps can reduce that risk and minimize the likelihood of a successful wrongful termination lawsuit:

1) Create and distribute written policies to employees which include reasonable expectations about conduct and performance. Employees should sign forms noting they read and understand these expectations.

2) Enforce your policies fairly and consistently: This is your best defense against discrimination claims. Disciplining one employee differently than another for similar violations, constitutes disparate treatment which is evidence of discrimination. Eliminate these risks by enforcing your written policies in a consistent manner.

3) Keep records of employee disciplinary issues: It is easier to justify terminating an employee for excessive absenteeism or poor performance if you discuss and document these issues with the employee and give written warnings about continued performance issues or violations of company policies. Have the employee acknowledge in writing that the issue was discussed. Be consistent in documenting these matters for all employees.

Arthur Ehrlich is a partner at Goldman & Ehrlich, which primarily practices employment law.