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HARRIS E. KERSHNAR : Firing Back at Ex-Employer : Attorney Discusses Lawsuits Over Wrongful Termination

January 01, 1990|Gregory Crouch | Times staff writer

Donald Bott, 55, of San Clemente claimed he was terminated from his 17-year job as Santa Ana's director of personnel in 1983 because of his age and his efforts to expose wrongdoing in city hiring. Six months ago, a jury decided it didn't believe him. But last week, Superior Court Judge Leonard Goldstein said he did and overturned the jury's verdict, awarding Bott $1.8 million.

The case is a good example of the difficulties involved in proving a wrongful termination lawsuit. Courts and legislatures are providing an increasing amount of protection for employees from indiscriminate firings but many of the laws are complicated. Nearly all require anybody terminated to act quickly if he or she hopes to win a verdict against a former employer.

Tustin attorney Harris E. Kershnar has represented more than 100 indi viduals who have sued their former employers for wrongful termination. He spent the early part of his career defending employers from such suits but changed sides in 1985.

"I'm philosophically more comfortable representing the underdog," he said.

Kershnar, 36, now serves on the American Bar Assn.'s Equal Employment Opportunity Committee and is a former chairman of the labor law section of the Orange County Bar Assn. He graduated from the law school at UC Berkeley. He recently spoke with Times staff writer Gregory Crouch about how fired employees can vindicate themselves in court.

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Q. What types of wrongful termination cases have you typically argued?

A. They are a varied lot. One was a case involving a large oil company that conducted searches of employees' vehicles and lockers as well as the employees themselves. The employee I represented was discharged because a marijuana cigarette was found in his car. The jury reached a verdict in favor of the employee on the grounds the employer violated an expressed agreement not to discharge people without good cause. Plus, there was an inadequate showing that the marijuana was his. And there wasn't much in the way of precedent to establish that drugs found inside a car amounted to grounds for terminating someone when there was no indication he had ever used drugs at work or ever reported to work under the influence of drugs.

On a different subject altogether, I handled an age discrimination case against a trucking company where there was a manager who thought my client was too old to be a driver and didn't hesitate to communicate that in front of other employees. My client was fired for a minor driving accident, which would not have typically resulted in the termination of a driver. The case was settled on terms we thought were quite favorable. And I had a case where an employee was fired for refusing to fire somebody else who declined to take a lie detector test. It's illegal to require someone to take a lie detector test, and my client was told to fire an employee who exercised his right to decline such a test. My client told the president of the company it was illegal for him to fire this person and, in turn, my client was fired. My client won a verdict on the basis his firing was contrary to the public policy of the state of California.

Q. How common is it for somebody to get fired?

A. Exceedingly common. People who feel they have been improperly terminated call up virtually on a daily basis. Nearly everyone who is fired feels that it was improper or unfair, but the real question is how many have a legal remedy, because what's unfair does not equal what is unlawful. I don't have a percentage for you, but a small percent of the unfair terminations fall into categories where the law provides a remedy.

Q. So what are the different categories?

A. The primary area is in civil rights laws covering age, race, sex, religion, national origin and physical handicap. Firings based upon any of those categories is prohibited based upon the Fair Employment and Housing Act, which is a California statute. Discrimination on the basis of sexual orientation is not prohibited by the terms of the acts but there are serval cities that have municipal ordinances that prohibit discrimination against gays and lesbians, including Laguna Beach, Los Angeles and San Francisco.

Q. What if the reason for somebody's dismissal doesn't coincide with one of the civil rights classifications?

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