A successful plaintiff under FEHA may recover the following:
- back pay (also referred to as back wages or lost earnings) (see Govt C §12965(c). Commodore Home Sys., Inc. v Superior Court (1982) 32 C3d 211.);
- front pay (or lost future earnings) to offset future pecuniary losses until he or she finds appropriate new employment;
- actual and general compensatory damages, including emotional distress damages in the same manner as in tort litigation;
- punitive damages; and
- reasonable attorney fees and costs (Govt C §12965(b)).
A back pay award under FEHA includes all compensation that the plaintiff would have earned but for the discrimination, including fringe benefits such as health benefits, vacation pay, pension contributions, bonuses, overtime, paid time off, and sick leave. (County of Alameda v FEHC (1984) 153 CA3d 499, 509.) Unemployment compensation or other collateral state benefits are not deducted from back pay awards in California.
Back pay need not be proved to a mathematical certainty; the wrongdoer bears the risk of any uncertainty it has created. Estate of Reynolds v Dole (ND Cal, Aug. 1, 1990, No. C-84–7012-VW(JSB)) 1990 US Dist Lexis 10259, aff’d sub nom Estate of Reynolds v Martin (9th Cir 1993) 985 F2d 470.
Back pay may include incentive compensation, such as bonuses and commissions, as long as the loss was foreseeable and the amount of incentive compensation can be calculated with reasonable certainty. Brawthen v H & R Block, Inc. (1975) 52 CA3d 139, 148; Smith v Brown-Forman Distillers Corp. (1987) 196 CA3d 503, 518.
The value of stock or stock options can be recovered as part of back pay, depending on the terms of the stock agreement and the context in which the stock was issued.
There is no limit on compensatory damages in a civil action under FEHA. (Commodore Home Sys., Inc. v Superior Court (1982) 32 C3d 211, 215).
A plaintiff seeking damages under FEHA has a duty to mitigate his or her damages by making “reasonable efforts to seek alternative employment.” Foley v Interactive Data Corp. (1988) 47 C3d 654, 692. Employers have the burden of proof on the issue of whether the plaintiff has failed to mitigate damages. (Donald Schriver, Inc. v FEHC (1986) 220 CA3d 396, 407.)
FEHA does not limit the amount of punitive damages a plaintiff may be awarded in a civil action.