When an employer illegally discriminates against a disabled employee the employee is entitled to a wide array of damages. A major issue in many cases involves calculating and proving damages. These issues are sometimes not fully fleshed out until trial. Although many individuals are discriminated against, and file claims against their employers, less than 5 percent of cases actually go to trial. This means that damages are decided either by the court on a motion or by the parties through settlement and other alternative dispute resolution means. This is usually a good thing for the employee because it means they can save significant time in their case.
Disability discrimination cases are brought either under the Fair Employment and Housing Act, the Americans with Disabilities Act, the Rehabilitation Act, or bring a claim for wrongful termination. Although an employee can allege violations of all these laws at the same time, they can only recover under one of the above theories. This post will focus on remedies under FEHA.
Under FEHA employees can receive back pay for wages they should have been paid for the past 2 years from the time of the illegal action of discrimination until the date of judgment, or if the employee is reinstated or is no longer available for reinstatement, because the get a new job. Front pay is also available, front pay is designed to compensate the employee for wages he or she would have earned after judgment, up until the court determines that the employee has been made whole.
However, an employee has a duty to mitigate damages. An employee can mitigate their back or front pay damages by looking for suitable employment. An employee may have to show the court that they have been making a reasonable job search. Further, some income sources may be deducted from back pay including severance pay. However, unemployment or other similar state benefits may not be deducted.
Emotional distress damages can also be recovered, these damages can be significant. However, once an employee or job applicant puts their emotional state at issue in the litigation, it opens the door for a wide range of questions involving the plaintiff’s emotional state and can involve the hiring of experts to determine the truthfulness of the claim for emotional damages.
Punitive damages are possibly available in a FEHA case against private employers, but these damages are more difficult to prove than other damages because they require that the employer acted with malice, oppression, fraud, or a conscious disregard for the plaintiff’s rights. Punitive damages are not available against a public employer. Other damages may also be available in FEHA cases, including compensatory damages.
If you have been discriminated against due to your disability or perceived disability contact a California employment law attorney right away. You may be entitled to a lawsuit or settlement for an employer’s discrimination or discriminatory practices. Call Cunningham Law, APC to schedule a free consultation at (951) 213-4786.