The CRD may bring a civil action directly to court if the agency determines an employer has failed to eliminate an unlawful employment practice.

Liability Limited in Mixed Motive Cases

Under California Supreme Court precedent, employer liability may be limited in mixed motive discrimination cases brought under the Fair Employment and Housing Act (FEHA).

A mixed motive case involves a scenario in which an employer terminates or takes some other type of adverse action against an employee for a legitimate business reason, such as poor performance, but there is also evidence that the employer engaged in discriminatory conduct against the employee. Typically, the employee presents evidence of unlawful discrimination and the employer presents evidence that it would have made the same decision anyway.

The California Supreme Court ruled that if an employer can prove that it would have made the same decision anyway, based on its lawful, non-discriminatory reason standing alone, the employee is not entitled to damages, back pay or reinstatement. This includes emotional distress damages. Other non-monetary relief and attorneys’ fees may still be available to the employee.2

But an employer is not completely free of liability. Although an employer is allowed to make legitimate business decisions regarding such issues as employee performance and related discipline, the court noted that FEHA’s clear intent is to prevent discrimination from occurring at work. If unlawful discrimination was also a substantial factor in the decision, the employee can be awarded declaratory relief (relief stating that the employer engaged in an unlawful practice), injunctive relief (an order stopping further conduct) and, when appropriate, reasonable attorneys’ fees and costs.

Remedies Under the ADA

If you are found to have engaged in an employment practice that is unlawful under the ADEA, you can be required to:

• Hire an applicant who was unlawfully denied a job.
• Reinstate an employee who was unlawfully discharged.
• Pay back wages and other benefits that an employee or applicant lost as a result of the unlawful employment practice. You can be required to pay back wages and other benefits for up to two years preceding the date on which the employee filed their charge. If your conduct is found to be willful, your liability may extend back three years.
• If the conduct is determined to be willful, pay additional damages equal to the amount of back wages awarded.
• Pay “front pay” until the employee reaches age 70.
• Pay the prevailing employee’s or applicant’s costs and reasonable attorneys’ fees.

A prevailing plaintiff may be entitled to double damages in cases of willful ADEA violations. “Willful conduct” occurs if you know or show reckless disregard for whether your conduct is prohibited by the ADEA.3

In O’Connor v. Consolidated Coin Caterers Corp., the U.S. Supreme Court ruled that a person who loses their job due to age may file a discrimination lawsuit even if they were replaced by another individual who was over 40, if the replacement employee is substantially younger than the terminated employee.4

1. Govt. Code sec. 12965