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Why Discrimination Claims Suck!

By Bernie Manolong

The Court of Appeal in a recent age discrimination case entitled, Davis v. Farmers Insurance Exchange (Cal.App. 3/28/16), affirmed a trial court's jury instruction that the Plaintiff must prove his age was a substantial motivating reason for his termination; that the employer could use the same decision or mixed motive defense; and that a same decision finding would eliminate reinstatement, back pay, and damage remedies. Wrongful termination claims are analogous to Fair Employment and Housing ("FEHA") claims.

In the Davis case, the Plaintiff, William Davis, sued his former employer, Farmer's Insurance, alleging common law wrongful termination in violation of public policy, among other things. On the wrongful termination claim, the court instructed the jury with CACI instructions amended to reflect the holding in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. Although the jury found that Davis' age was a substantial motivating factor in his termination, it also found that Farmers would have made the same termination decision for legitimate business reasons. Davis appealed, and the Court of Appeal affirmed in part and held that Davis must prove that his age was a substantial motivating reason for his termination; that Farmers could use the same decision or mixed motive defense; and that a same decision finding would eliminate reinstatement, back pay, and damage remedies.

Davis did not seek declaratory or injunctive relief relevant to his wrongful termination claim. Even if Davis had raised the injunctive relief claim, he did not demonstrate an imminent threat of continued age discrimination against him or any current Farmers employees.

Accordingly, Davis could not recover his attorney fees. Although a plaintiff who proves that discrimination was a substantial motivating factor for an adverse employment action may recover fees in a FEHA action under Harris, Davis unfortunately did not bring a FEHA action.

In the end, the Davis case simply reinforces the unfair vertical uphill battle California courts have created for employees to climb in order to prove wrongful termination in violation of the FEHA. Hence, employers defending such lawsuits have a huge loophole to exploit by presenting evidence they would have made the same decision to fire based other reasons, which can include any reason so long as it is not in violation of the FEHA. Even a mistaken belief can amount to a legitimate reason to fire an employee in certain situations. To those employees who are getting write-ups and negative performance evaluations, be warned that these could be signs of an imminent termination.

The opinion is available here.

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