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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12952
Experience:  Significant experience in all areas of employment law.
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I was recently fired from my job for making a racial comment

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I was recently fired from my job for making a racial comment after another coworker made a similar comment to me. My coworker made a comment in a jokingly manner and i replied back. Nobody else in our office heard the remarks we made to each other and the supervisor and her assistant were out that day. However, another coworker heard us giggling and asked what was so funny. My coworker initially had no idea that I had made a racial comment back to her and when a third party coworker asked me, I told her what I had said. She laughed and stated it was the funniest thing she had heard. She went back to my coworker and asked her if she was aware what I had said. She said she didn't have a slightest idea I had said anything back. They both returned to my office and mentioned she did not hear me make that comment and continued to laugh about it. Almost two weeks later we were both called into our Supervisors office where we both agreed that it was completely non offensive or bother by it. We are both aware that our third party coworker claimed she was bothered by this and three days later we were both terminated. Prior to this I had filed a harassment case against my supervisor. I believe this urged her to get me out the door. I have since filed an unemployment claim and I received my denial letter today. Do I have a chance of obtaining benefits if I file an appeal and should I do this personally to my local EDD office or via mail as indicated?
Good afternoon and thank you for entrusting me to answer your question. I am very sorry to hear that you were let go on this basis.

As a general matter, an individual will be eligible to receive benefits provided that they have received enough wages during the base period to establish a claim (either $1300 in one quarter of their "base period," or at least $900 in their highest quarter and total base period earnings of 1.25 times their high quarter earnings), they are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of their own.

It would appear the EDD has preliminarily disqualified you on the grounds that you were terminated for "misconduct." (As a point of clarification, employers can terminate employees for just about any reason; however, an employee will generally only be denied UE benefits if they are found to have been terminated for "misconduct.") That being the case, in order to appeal your denial of benefits you would need to persuade the EDD that the circumstances giving rise to your termination do not amount to "misconduct" that is sufficient to for the basis for a denial of benefits.

Generally speaking, "misconduct" is an intangible concept which has never been defined by the legislature. In P-B-3, citing Maywood Glass Co . v. Stewart (1959), the Board gave the following definition of misconduct:

The definition of misconduct must be considered in the light of the basic purpose of the unemployment insurance program. As expressed in Section 100 of the Unemployment Insurance Code, this basic purpose is that unemployment benefits are for persons involuntarily unemployed through no fault of their own.

. . . 'fault' means intentional action which the person who claims benefits foresees, or which it may be reasonably inferred he must have foreseen, would tend to produce or prolong a period of unemployment and from which a reasonable person in the claimant's circumstances and with the claim- ant's knowledge and understanding, desiring employment and foreseeing such loss of employment, would necessarily refrain.

Although employers are required by law to conduct a reasonable investigation into any allegation of "hostile work environment" premised on race and your co-worker's report of this incident was likely sufficient to trigger that obligation, your employer was under no legal obligation to let you go.

Thus, unless your employer can demonstrate that you should have reasonably foreseen that making the casual joke you did was going to get you fired, then disqualification for misconduct should be appealable. The botXXXXX XXXXXne is that you made the joke to someone who clearly was not offended by it and indeed prompted it. It is unfortunate that someone else heard the remark and took offense to it, but that having occurred does not mean that your termination for making the remark was foreseeable.

This is the argument you will need to articulate to the EDD in your appeal. Finally, the appeal can be submitted via mail, as indicated.

To summarize, while your employer likely had a legal obligation to investigate your co-worker's complaint, they were under no legal obligation to fire you (they were free to do so, however). Given that disqualification for misconduct requires a finding that you should have reasonably foreseen such a comment would have led to termination, and given that the comment was innocently made during a quibble with a colleague in jest, it is hard to imagine that a denial of benefits should result therefrom. Therefore, an appeal on these facts has a very good chance of being successful, typically speaking.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 4 years ago.

I thank you for taking the time to review my concern regarding this matter. Do you think it would be wise to search for a local attorney to review all the details leading up to my termination and pursue a legal case for, "wrongful termination."


Thank you very much for your reply. However, I must be candid when I say that, absent an express agreement to the contrary, employment in the state of California is "at will," meaning terminable for just about any reason whatsoever, or even no reason at all.

While your employer's decision to let you go on the facts described was a severe overreation, they would appear to be within their rights to have done so. This is the distinction I was trying to articulate in my answer above. The being, the standard for legal disqualification for benefits (misconduct) is different than the standard for legal termination (with or without cause for just about any reason at all). Here, while disqualification from benefits is likely against the law, termination is not.

Many employment law attorneys do offer free consultations, so you can always call around to get a more in depth assessment of the facts, but I can save you that trouble by telling you in advance that nothing you have said would indicate that termination was for an illegal reason, despite being highly unfair. I am very sorry but I do hope you appreciate my candor in this respect.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
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