How to Evaluate Whether You Have an Employment Case
Something happened at work — a termination, a demotion, a pattern of mistreatment — and you believe it was wrong. Before you call a lawyer, you can begin the analysis yourself. This article walks through the framework that employment attorneys use to evaluate whether a situation gives rise to a legal claim.
The feeling comes first. Something is wrong. The termination does not make sense. The demotion followed a complaint. The new hire who replaced you is twenty years younger and less experienced. The performance issues materialized out of nowhere, two weeks after you told HR about your supervisor’s behavior.
The feeling is worth investigating. But a feeling is not a case, and the distance between “something was wrong” and “this is actionable under California law” is bridged by a series of specific questions. What follows is the analytical framework — the same framework an employment attorney applies when evaluating a potential claim.
Question 1: What happened?
The first step is to identify the adverse action — the specific thing the employer did. A legal claim requires a concrete adverse action, not a general atmosphere of unfairness.
Adverse actions include: termination, demotion, suspension, transfer to a less desirable position, significant reduction in pay or hours, denial of a promotion, negative performance evaluation, placement on a performance improvement plan, exclusion from work opportunities, and any other action that materially affects the terms or conditions of employment.
If the harm is purely interpersonal — a rude supervisor, a disagreeable coworker, a general feeling of being undervalued — it may not constitute an adverse action unless it rises to the level of a hostile work environment based on a protected characteristic.
Be specific. “I was treated unfairly” is a starting point. “I was terminated on March 15 after nine years of satisfactory performance, two weeks after filing a harassment complaint” is an adverse action with context.
Question 2: Why did it happen?
This is the central question. California’s at-will doctrine permits employers to take adverse actions for any reason that is not specifically prohibited by law. The question is whether the real reason falls into one of the prohibited categories.
Was the action based on a protected characteristic? Review the characteristics FEHA protects: race, color, national origin, ancestry, sex, gender, gender identity, gender expression, sexual orientation, age (40+), disability (physical or mental), medical condition, genetic information, marital status, military or veteran status, religion, and pregnancy. If you believe the adverse action was motivated — even in part — by any of these characteristics, you may have a discrimination claim.
Was the action in retaliation for protected activity? Protected activity includes: filing or threatening to file a complaint about discrimination or harassment; reporting illegal activity (whistleblowing); requesting a reasonable accommodation for a disability or religious practice; taking or requesting medical leave, family leave, pregnancy leave, bereavement leave, or reproductive loss leave; filing a workers’ compensation claim; complaining about unsafe working conditions; discussing wages with coworkers; participating in a workplace investigation; and exercising virtually any right the Labor Code provides.
If the adverse action followed any of these activities — particularly if it followed closely in time — the temporal proximity may support a retaliation claim.
Was the action connected to a wage or hour violation? If the employer was not paying overtime, not providing meal or rest breaks, misclassifying you as exempt or as an independent contractor, not reimbursing business expenses, or committing any other wage violation, you may have a claim under the Labor Code regardless of whether you were terminated.
Did the termination violate public policy? If you were fired for refusing to do something illegal, for performing a legal duty (jury duty, mandatory reporting), for exercising a legal right, or for reporting a legal violation, you may have a Tameny claim for wrongful termination in violation of public policy.
Question 3: What is the evidence?
A case is only as strong as the evidence that supports it. At the evaluation stage, consider what evidence exists — or could be obtained — to support the claim.
Timing. How close in time was the adverse action to the protected activity? An employee terminated two weeks after filing a complaint has stronger circumstantial evidence than one terminated two years later. Temporal proximity is not conclusive, but it is probative.
Comparative treatment. Were similarly situated employees treated differently? An employee who was fired for “performance” while a colleague with a worse record was retained has evidence of pretext. An employee who was denied a promotion while a less qualified person of a different race or gender was promoted has evidence of discrimination. The comparison must be to employees who are genuinely similarly situated — same role, same supervisor, same performance level — for the comparison to be meaningful.
Documentary evidence. Emails, text messages, performance reviews, written warnings, the termination letter, internal memos, HR records. Documents that show a change in the employer’s assessment — positive reviews followed by sudden criticism, consistent praise followed by a PIP — are particularly powerful.
The employer’s stated reason. Is it consistent? Does it match the documentary record? Has it shifted over time? A reason that is vague, unsupported by the record, or inconsistent across different tellings is evidence of pretext.
Witnesses. Are there people who observed the conduct, overheard relevant conversations, or experienced similar treatment? Witness testimony can corroborate the employee’s account and establish a pattern.
Pattern or practice. Is the employee’s experience isolated, or is it part of a broader pattern? If other employees of the same protected class were treated similarly — fired under similar circumstances, denied similar opportunities, subjected to similar comments — the pattern supports a systemic claim.
Question 4: What are the deadlines?
Every claim has a statute of limitations. Before evaluating whether to pursue a claim, identify which deadlines apply and when they expire. The most important ones:
FEHA claims require a CRD complaint within three years, followed by a lawsuit within one year of the right-to-sue notice. Tameny claims have a two-year deadline. Most wage claims have three years, with a possible fourth year under the UCL. PAGA claims have a one-year deadline. Defamation claims have a one-year deadline. EEOC charges must be filed within 300 days.
If any deadline is approaching, act promptly. A strong claim that is filed after the deadline expires is not a claim at all.
Question 5: What is the claim worth?
This question is better answered with professional guidance than through self-assessment, but the general framework is knowable. The value of an employment claim is a function of: the employee’s economic losses (back pay, front pay, lost benefits); the severity and duration of emotional distress; the egregiousness of the employer’s conduct (which affects the likelihood and amount of punitive damages); the strength of the evidence; and the applicable statutory penalties and attorney’s fees.
A case with clear documentary evidence, high economic losses, and egregious employer conduct is worth more than a case with ambiguous evidence, modest losses, and borderline conduct. The initial consultation with an attorney is the appropriate setting for a realistic valuation.
When to call a lawyer
The framework above can help an employee determine whether the situation warrants a legal consultation. If the answers suggest that: (1) a concrete adverse action occurred; (2) the action may have been motivated by a protected characteristic or protected activity; (3) some evidence supports that inference; and (4) the deadlines have not expired — the situation warrants a conversation with an employment attorney.
The consultation is not a commitment. It is an assessment. A good attorney will tell the employee whether the facts support a claim, which claims are strongest, what evidence would strengthen the case, and what the realistic range of outcomes is. The employee can then decide, with the benefit of that assessment, whether and how to proceed.
If the answers suggest that the situation, while unfair, does not implicate a protected characteristic or protected activity — the employee may not have a viable legal claim. That is a useful answer too. It allows the employee to redirect their energy from a legal process that will not succeed toward recovery and the next chapter.
If you are trying to determine whether what happened to you is actionable, the analysis begins with four questions: What happened? Why did it happen? What evidence supports your belief about why? And are you still within the deadlines? An employment attorney can refine the analysis, but these questions are the right place to start.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.