Most employers and employees do not realize that California is an "at will" state. In basic terms that means that an employee works at the will of the employer. Subject to certain exceptions, you can terminate an employee for no reason, without notice. They can be your best employee. They can have the most seniority. It does not matter.
You can terminate a woman, a person over forty years of age, an Asian, an African-American, a disabled person, a pregnant person, a religious person, a gay or lesbian, or a foreigner. You just cannot terminate an employee because they are a woman, over forty years of age, Asian, an African-American, a disabled person, a pregnant person, a religious person, a gay or lesbian, or a foreigner.

The point is, the motive for the termination is the governing factor in a lawsuit for discrimination. Just about any employee falls within a protected category. Even a white male Protestant under forty born in the United States, with no disability and who is heterosexual falls into a protected category.

Does this mean that even though California is an "at will" state, you cannot terminate anyone? Of course not. You can even terminate someone because you simply do not like them. However, you cannot terminate them because of what they are.

It follows that if everyone can fall under a protected class, and motive for termination is the basis for litigation, then establishing and proving a benign motive is the most essential element for protecting a company from a claim of discrimination.

Although we have spoken of termination, the employer should be aware that the law applies to all terms and conditions of employment; keep in mind that as many discrimination claims arise from failure to promote as failure.

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