You lost your job, or maybe you are watching a coworker lose theirs, and something about it feels off. The reasons do not add up. The timing is suspicious. You have heard the words “discrimination” and “wrongful termination” thrown around, but you are not sure which one applies.
The terms overlap, but they are not the same. A termination can be discriminatory. It can also be unlawful for reasons that have nothing to do with discrimination.
Knowing the difference matters because each claim has its own legal standard, deadlines, and remedies.
What Is Employment Discrimination?
Employment discrimination happens when an employer treats an employee or applicant worse because of a protected characteristic. Under California’s Fair Employment and Housing Act (FEHA), employers with five or more employees cannot make decisions based on:
- Race, color, national origin, or ancestry
- Sex, gender, gender identity, or gender expression
- Sexual orientation
- Age (40 or older)
- Physical or mental disability, or medical condition
- Religion or religious creed
- Marital status, pregnancy, or genetic information
- Military or veteran status
Discrimination is not limited to firing. It can occur at any stage of employment, including hiring, pay, assignments, promotions, training, discipline, and benefits.
Under Harris v. City of Santa Monica (2013) 56 Cal.4th 203, a plaintiff must show the protected characteristic was a “substantial motivating factor” in the employer’s adverse decision.
What Is Unlawful Termination?
Unlawful termination, often called wrongful termination, is a broader category. It covers any firing that violates the law, not just firings motivated by discrimination.
California is an at-will employment state under Labor Code section 2922, which means employers can generally fire employees for any reason or no reason at all, but they cannot fire someone for an illegal reason.
Some common examples of unlawful termination include:
- Firing someone because of a protected characteristic (discriminatory termination under FEHA)
- Firing someone in retaliation for reporting illegal activity (whistleblower retaliation under Labor Code section 1102.5)
- Firing someone for taking legally protected leave (CFRA, PDL, FMLA)
- Firing someone for refusing to commit an illegal act
- Firing someone for filing a workers’ compensation claim (Labor Code section 132a)
- Firing someone for performing a legal duty, such as jury duty or military service
- Firing someone in violation of a written or implied employment contract
California also recognizes a common-law claim for wrongful termination in violation of public policy, established in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.
Under Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, a Tameny claim fits one of four categories.
The employee was fired for:
- Refusing to violate a statute
- Performing a statutory obligation
- Exercising a constitutional or statutory right
- Reporting a statutory violation for the public’s benefit
The public policy must be fundamental, substantial, and grounded in a statute, regulation, or constitutional provision.
How Do the Two Overlap?
Discriminatory termination is one type of unlawful termination, but not every unlawful termination is discriminatory:
- All discriminatory firings are unlawful terminations
- Not all unlawful terminations are discriminatory
- Many cases involve both claims at once
For example, an employee fired because she is pregnant has a discrimination claim under FEHA and a wrongful termination claim.
An employee fired for refusing to falsify financial records has a Tameny claim, but no discrimination claim.
An employee fired for reporting sexual harassment may have a FEHA retaliation claim, a Labor Code section 1102.5 whistleblower claim, and a Tameny claim from the same firing.
When you talk to an employment lawyer, the conversation is rarely about picking one claim. It is about identifying every cause of action that fits the facts.
Key Differences in How These Claims Work
The table below compares the two on the points that actually matter when deciding which claim to bring.
| Discrimination (FEHA) | Wrongful Termination (Tameny / Public Policy) | |
| Where you file | CRD first, then court | Court directly |
| Deadline to file | 3 years with CRD (Gov. Code § 12960); 1 year after right-to-sue notice | 2 years from termination (CCP § 335.1) |
| What you must prove | Protected characteristic was a substantial motivating factor (Harris v. City of Santa Monica); burden-shifting framework under Guz v. Bechtel | Substantial motivating factor was a violation of fundamental public policy |
| Back pay, front pay, emotional distress | ✅ | ✅ |
| Punitive damages | ✅ (with malice, oppression, or fraud) | ✅ (with malice, oppression, or fraud) |
| Attorney’s fees | ✅ (Gov. Code § 12965) | ❌ (unless tied to a statute) |
| Statutory caps on damages | None under FEHA (subject to constitutional due process limits) | None (subject to constitutional due process limits) |
The shortest applicable deadline is the one that controls. Plaintiffs often plead both theories together to capture both the longer FEHA window and the broader common-law remedies.
How to Tell Which Claim Applies
Ask yourself:
- Was your termination connected to a protected characteristic (race, sex, age, disability, pregnancy, etc.)?
If yes, it likely involves discrimination under FEHA.
- Did you complain about illegal activity before being fired (wage theft, fraud, safety violations, harassment)?
If yes, it likely involves whistleblower retaliation under Labor Code section 1102.5 and possibly a Tameny claim.
- Did you take protected leave or assert a legal right?
If yes, retaliation for exercising that right is unlawful.
- Were you asked to do something illegal and refused?
If yes, your termination may violate public policy under Tameny.
- Did you file a workers’ compensation claim before being fired?
If yes, that may be a section 132a violation.
- Did your employer breach a written or implied promise about how termination would be handled?
You may have a contract-based claim alongside any statutory claim.
Many cases fit more than one category. An employment attorney can identify all viable claims and pursue them together.
What to Do If You Suspect Either
The steps to protect your rights are similar.
Preserve evidence. Save emails, text messages, performance reviews, and any documentation related to your employment and termination. Do this before you lose access to work systems.
Document the timeline. Write down dates, witnesses, and the substance of relevant conversations. Contemporaneous notes carry weight.
Request your personnel file. Under California Labor Code section 1198.5, current and former employees can inspect and copy their personnel records. Inconsistencies between what your employer told you and what is in the file can be useful evidence.
Consult an employment attorney. These cases involve overlapping statutes, tight deadlines, and complex legal standards. The shortest applicable deadline is the hard one. A lawyer can evaluate which claims fit your facts and advise you on the best path forward.
Sorting Out Whether You Have a Claim
You do not have to figure out the legal theories on your own. The right framing of your claim can make a significant difference in the outcome.
At Malk Law Firm, we represent California employees in discrimination, wrongful termination, harassment, and retaliation cases. If you believe your employer crossed a legal line, contact us today for a confidential consultation.