Discharge is considered wrongful when it occurs as a breach of public policy. The public policy is expressed in the statutes of various (but not all) states, some state constitutions, and policies which forbid retaliation against an employee who has acted in a way the public would encourage, or not acting in a way the public would forbid. A breach of public policy may occur if the employee is discharged for reasons protected in Title VII of the Civil Rights Act of 1965 as amended in 1991, or other statutory protections.*
- Title VII of the Civil Rights Act (1964 and 1991)
- Americans with Disabilities Act (ADA)
- Federal Employers Liability Act (depending on jurisdiction) (FELA)
- Age Discrimination in Employment Act (ADEA) of 1967
- State employment discrimination statutes
Wrongful termination is one cause of intentional or unintentional infliction of emotional distress. Other employment related acts for which emotional distress damages are provided for in the common law. They include:
- Assault and battery
- False imprisonment
- Intrusion as seclusion
- False-light publicity
- Public disclosure of private facts
- Tortious interference with a contract
- Loss of consortium
- Negligence (only in cases of physical impact or injury, malice, breach of fiduciary duty or by such acts where the negligence will predictably cause highly unusual emotional distress. This last matter exemplified in Allen v. Jones where the cremated remains of Mr. Allen’s brother were mishandled).
A mental examination is necessary to determine the extent of the emotional distress damages caused by Wrongful Termination or other acts. The examiner must consider the individual’s vulnerabilities including pre-existing psychiatric or medical problems and prior life experiences. Failure to mitigate damages must be considered.