In Herr v. Nestle U.S.A., Inc., an employee filed a lawsuit alleging that he was constructively discharged in violation of FEHA’s age discrimination provisions. He also alleged that an employer that practices age discrimination gains an unfair competitive advantage over employers who comply with the law, because older employees generally receive higher pay than their younger counterparts. The employee succeeded on both claims and was awarded more than $5 million on the FEHA claim. The trial court then issued an order permanently forbidding the employer from discriminating based on age, directing the company to advise all employees that it was repudiating an objectionable directive and ordering the company to advise all employees of the court’s final judgment.

The appeals court affirmed the employee’s right to sue under UCL, ruling that any protections provided by the UCL added to protections that FEHA provides. The court rejected the company’s argument that the UCL is intended to protect consumers and competitors but not employees.2

The decision affects California employers because:

• It could be argued that employers who discriminate against other protected classes enjoy a similar competitive advantage
• Courts can issue broadly drawn injunctive orders under the UCL
• Claims may be filed under the UCL by any person acting in his own interests or those of the general public

Protections that the UCL provides are in addition to, and take a more extensive form than, protections under FEHA.

1. Bus. & Prof. Code sec. 17200