California employees have numerous protections against discrimination in the workplace. Before deciding whether to enforce those rights, it's important to understand the legal landscape. Most discrimination cases are governed by two primary acts: (1) the California Fair Employment and Housing Act, ((Government Code, §§ 12900–12996.)) and (2) on the federal level, Title VII of the Civil Rights Act of 1964. ((42 U.S.C. §§ 2000e—2000e-17.)) These laws prohibit most forms of discrimination if they are based on one of several protected grounds. This post (and the infographic in the first section) provides an overview of discrimination facts and statistics for California discrimination litigation.

The Infographic: Facts & Statistics about Employment Litigation in California.

A Closer Look at the Facts.

The litigation process in employment discrimination cases.

In employment discrimination litigation, workers have their choice of two primary laws. they can bring a complaint under either: (1) the California Fair Employment and Housing Act, or (2) Title VII of the Civil Rights Act of 1964. In most cases, the worker will choose to bring an action under the California Fair Employment and Housing Act. It offers several benefits over the federal laws, including:

• More categories of protected classes, which means a broader definition of discrimination for workers.
• A slightly longer statute of limitations (just a couple months).
• Potentially unlimited punitive damages.
• And a jury verdict that doesn't need to be unanimous.

Once the worker (or their lawyer) chooses the appropriate set of laws to enforce, they will next need to contact the appropriate government agency. The California Fair Employment and Housing Act is enforced by the Department of Fair Employment and Housing. California workers begin the process by filing a complaint with with the Department. After that, the employees have the immediate right to sue or they may undergo the administrative process offered by the Department.

The federal anti-discrimination statutes also provide for an administrative body: the Equal Employment Opportunity Commission. Workers that decide to take the federal route will have to contact the Commission and work with them in filing the charge against their employer. Often, this process is fairly informal.

Average settlements: What can employees expect to get?

The answer to this question is complicated. In short, every case is different and there is no way to know how valuable a case is with any certainty. Also, there have been no comprehensive studies in this field. This is, in part, because many (perhaps most) settlements are confidential and private. They take place outside of court and there is no way to aggregate sufficient data to analyze them.

One study was conducted between 1999 and 2005, which looked at employment discrimination cases in the Chicago-area. ((Minna J. Kotkin, Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements, 64 Wash & Lee L. Rev. 111 (2007) available at http://law.wlu.edu/deptimages/Law%20Review/64-1%20Kotkin%20Article.pdf.)) The study examined 1,170 federal cases in total over that period. On average, workers recovered $54,651. The study also concluded that the primary factors influencing the size of the settlement were:

• The type of discrimination.
• The type of adverse employment action.
• The stage of litigation.
• And the amount of lost wages.

You may have noticed that our infographic listed $40,000 as the average amount of recovery—not $54,000. The California Department of Fair Employment and Housing has published statistics that differ slightly from the Chicago study. In 2010, the Department's annual report concluded that the average post-accusation settlement exceeded $40,000. ((California Department of Fair Employment & Housing, 2010 Annual Report at 4, available at http://www.dfeh.ca.gov/res/docs/AnnulaReport/2010%20annual%20report%20final.pdf.)) No definitie number is given. In creating our infographic, however, we decided to err on the side of caution and include the Department's results.

Importantly, the average discrimination settlement may be substantially higher than what the Department of Fair Employment and Housing reported. First, the Department has publicly stated that they do not pursue administrative fines or punitive damages during pre-accusation settlement discussions. ((Department of Fair Employment & Housing, The DFEH Investigative Process and How to Avoid Class Action Litigation (un-dated PowerPoint Presentation), available at http://www.dfeh.ca.gov/res/docs/ppt/TimMuscatWebinar.ppt.)) Also, the Department does not generally pursue attorney fees. ((Id.)) Finally, the Department's interest is not directly aligned with the worker. The Department is interested in resolving the matter fairly—whatever they interpret fair to mean.

Plaintiff's attorneys, on the other hand, do have their interests aligned with the worker. In many cases, the attorney's pay depends on how much they can recover on the worker's behalf. So the attorney has every interest in vigorously pursuing attorney fees, punitive damages, and administrative fines on their clients' behalf. Most importantly, attorneys owe numerous duties to their clients and are obligated to advocate for their clients' interest. ((See Notes to Rule 3-100, California Rules of Professional Conduct.)) Attorneys may fight harder for the worker than the Department of Fair Employment and Housing. This would lead to a reasonable conclusion that the average discrimination settlement is likely to exceed $40,000. Again, however, the outcomes in every case will vary substantially and the data is not conclusive.

Costs of litigation.

From the employee's perspective, many attorneys take cases on a contingent fee basis. This means that the primary expense of litigation—the attorney fees—are borne initially be the employee's attorney. The fees are then later recouped by the attorney as a percentage of the award or settlement won on the employee's behalf. In many situations, the attorney only gets paid if the employee wins.

It is also possible for employees to find attorneys that are willing to advance other litigation costs, like the costs of depositions, court fees, and expert fees. Structuring the attorney-client relationship this way can be hugely beneficial for employees because they don't have to worry about whether they can afford the biggest litigation expense.

Employers, on the other hand, do not have the same opportunities because they are defending the lawsuit. They have the burden of paying all of their attorney fees and litigation costs up-front. These fees can quickly add up and serve as a deterrent for the employer to continue with litigation. The Department of Fair Employment and Housing has estimated that the average cost to defend a discrimination case for employers can exceed $250,000. ((California Department of Fair Employment & Housing, 2010 Annual Report at 4, available at http://www.dfeh.ca.gov/res/docs/AnnulaReport/2010%20annual%20report%20final.pdf.)) To avoid this, settlements have become increasingly common.

The statute of limitations.

A statute of limitations is a law that restricts how long after an incident a lawsuit may be brought. In other words, the law requires victims to assert their rights within a specific period of time. The law also puts restrictions on the way that employees must assert those rights.

Employment discrimination cases have an unusually short statute of limitations. The exact statute of limitations depends on which law the employee decides to enforce—the state or the federal claims.

If the employee decides to pursue claims under California's Fair Employment and Housing Act, ((Government Code, §§ 12900–12996.)) the statute of limitations is one year from the time of the alleged discrimination. ((Government Code, § 12960.)) If the injury suffered was a wrongful termination, the one-year period begins to run on the date of termination. ((Romano v. Rockwell Int'l, Inc. (1996) 14 Cal.4th 479, 500.))

This period, however, may be extended for up to 90 days by the Department of Fair Employment and Housing if the employee first learned about the discrimination after the one year had expired. ((Id. at § 12960, subd. (d)(1).)) There are are several other reasons why the statute of limitations might be extended, including:

• The employee didn't know who the correct employer was.
• The employee was not a legal adult at the time of the violation.

The employee may also have the option of pursing a federal claim for discrimination under Title VII of the Civil Rights Act of 1964. ((42 U.S.C. §§ 2000e—2000e-17.)) If they choose this course, the employee must file their discrimination claim within 300 days. ((42 U.S.C. § 2000e-5, subd. (e).)) This period begins to run on the exact day of the alleged discrimination. ((42 U.S.C. § 2000e-5, subd. (e)(1).)) Like the California rule, however, there may be numerous exceptions to the normal statute of limitations. ((See, e.g., the Lilly Ledbetter Fair Pay Act of 2009.))

What claims constitute "discrimination"?

In California, the Fair Employment and Housing Act identifies several classes of people that are protected from discrimination. If the discrimination was not based on on of these protected reasons, the employee usually cannot assert unlawful discrimination against their employer. The categories of discrimination are:

• Race, skin color, national origin, or ancestry.
• Religious creed.
• Physical or mental disability.
• Genetic information.
• Medical condition.
• Gender, sex, gender identity, or gender expression.
• Pregnancy or childbirth.
• Marital status.
• Age.
• Sexual orientation. ((Government Code, § 12940.))

Discrimination also requires an action that damaged the employee. Mere bad thoughts aren't enough to constitute unlawful discrimination under the Fair Employment and Housing Act. Examples of unlawful actions include:

• A refusal to hire a prospective employee due to their membership of a protected class.
• A refusal to select the person for a training program leading to employment due to their membership of a protected class.
• Terminating a person's employment due to their membership of a protected class.
• Offering differing compensation, benefits, or privileges to employees depending on their membership of a protected class. ((Id.))

Under federal law, the list of protected classes is much shorter. Employees may claim unlawful employment discrimination under Title VII if the discrimination relates to one of the following classes:

• Race.
• Color.
• Religion.
• Sex.
• National origin.
• Pregnancy, childbirth, or related medical conditions. ((42 USC §§ 2000e, subd. (k), 2000e-2, subds. (a)–(c).))

The narrow scope of Title VII's protected classes provides many employees with additional incentive to bring their complaints under California's discrimination procedures, rather than the federal procedures.

What kinds damages are available in a discrimination action?

California's Fair Employment and Housing Act places no limits on the amount of damages that an employer or former employee may recover. The limits therefore depend on the facts in each individual case. The Act provides for several types of damages, including:

• Back pay. Courts are empowered to grant employees their previously earned but unpaid wages, as well as lost earnings. ((Government Code, § 12965, subd. (c).)) These damages often include the money that the employee would have earned if the discrimination had not occurred.
• Front pay. Front pay includes lost future earnings. These kinds of damages may be awarded to employees to offset future income losses that wouldn't have occurred without the discrimination. ((Cal. Code Regs., tit. 2, § 7286.9.)) The damages are meant to put the employee into their rightful place until the employee receives an offer of the appropriate position.
• Compensatory damages. These kinds of damages seek to compensate a person for a particular loss or injury. In the context of discrimination, this injury is often emotional distress. Fortunately, damages for emotional distress are recoverable in California discrimination cases. ((See Hope v. California Youth Authority (2005) 134 Cal.App.4th 577 .)) Importantly, California law does not place a limit on the amount of compensatory damages that employees may recover in discrimination cases.
• Punitive damages. These damages are meant to punish employers for their actions. The can often exceed any damages to which the employee would be otherwise entitled. To obtain punitive damages, the employee must show that that the employer acted with malice, oppression, or fraud, or with conscious disregard of the plaintiff's rights. ((Civil Code, § 3294.)) Like compensatory damages, California law does not place a limit on the amount of punitive damages available in a discrimination case.
• Attorney fees. Attorney fees are often one of the most costly parts of litigation. California law allows successful employees to recover attorney fees. ((Government Code, § 12965, subd. (b). )) This incentivizes many attorneys to take cases on a contingency basis, which allows clients to avoid any up-front costs.
• Litigation costs. During litigation, numerous costs may be incurred. These include expert witness fees, deposition fees, discovery costs, and court costs. Like attorney fees, however, these costs may be recovered by employees at the conclusion of a successful lawsuit. ((Id.))

Interestingly, California law favors the employee significantly in determining damage awards. For instance, although attorney fees and litigation costs are recoverable by a successful employee, they are generally not recoverable by the employers. An employer would have to show that the employee's action was frivolous, unreasonable, or groundless.

Final Thoughts.

Employees are protected from discrimination in a number of ways. Both California and federal law protect specific classes of employees from discrimination. In response to these protective laws, hundreds of employees file discrimination complaints against their employers every day.

In many cases, the complaints can be very profitable for the employees. With settlements averaging more than $40,000, employees with legitimate claims have every incentive to vigorously enforce their rights. Additionally, employees may be able to further protect their rights by hiring an attorney to represent them.

If you believe you may have been the victim of unlawful discrimination, give an employment attorney a call. Optimum Employment Lawyers represent clients all over Los Angeles and Orange County. Their consultations are free and can help you determine your options: (949) 954-8181.