Written by By Galen T. Shimoda and Jennet Zapata
The Court made it more difficult for employees to win discrimination cases. The Court requires that a jury find that discrimination was a “substantial factor,” not just a factor, motivating a termination of employment. This increases the burden of proof that an employee must meet to succeed in his or her case. Generally, employers or their agents do not admit to actually discriminating their employees, so the employee has to find other evidence of such discriminatory intent.
Even if the employee produces sufficient evidence of an unlawful termination of employment, under this new decision, the employer will not have to pay for any loss in wages or emotional distress caused by such discrimination, provided he proves the following: that he or she would have made the same decision regardless of such discrimination. In other words, if the employee has performance issues such that the employer would have made the same decision to terminate an employee at the time it made its actual decision to terminate the employee, the employee may not be able to recover damages even if the employer’s decision was tainted by a discriminatory motive. Once the employer makes this showing, a court is prohibited from awarding damages, including emotional distress damages, economic damages, such as backpay, or even reinstatement to the former position to the employee. This puts employees in a difficult position if they have been out of work for years because they were discriminated and have suffered tremendously financially and emotionally because of such termination. This means also means that in order to have a better chance of defeating such a defense an employee must have a spotless employment record without a record of discipline. Otherwise, the employer could allege that it fired the employee due to the performance issues that occurred over a period of time. However, an employee may recover emotional distress damages when an employee is subject to unlawful harassment during his or her employment or if he or she claims intentional infliction of emotional distress.
The Court tried to give employees some sort of symbolic relief for being terminated due to discrimination. A court can order the employer to stop or cease its discriminatory practices. The employee can also apply for and the court may award attorney’s fees and costs incurred for litigating the case in court. Such award, however, must be “reasonable,” and thus, it is possible an employee may not recover every single dollar spent in a case, if any.
On the other hand, employers also face the risk of paying attorney’s fees to the other side if there is sufficient evidence of discrimination. If the employer learned of performance issues after the actual termination, such newly-discovered evidence should not have any bearing on the employer’s decision to terminate because it did not know about it. The Court did not specially rule on this.
If you would like to read the Court’s opinion, you may find it on the Supreme Court’s website, http://www.courts.ca.gov/supremecourt.htm by following the link for “case information,” or on google scholar at the following link: http://scholar.google.com/scholar_case?case=6003539021154551979&hl=en&as_sdt=6&as_vis=1&oi=scholarr,
Ultimately, this is not a favorable decision for employees. Employees and their attorneys must consider all the circumstances surrounding the termination, including the reasons given by the employer for the termination, to assess whether it is recommendable to file a case in court. If you believe you may have a case for unlawful discrimination,please consult the Shimoda Law Corp. in order to obtain a personalized assessment of your particular case.