In a recent article, we discussed some of the remedies available to an individual who prevails on a retaliation claim under the Fair Employment & Housing Act. (California Government Code §12940 et. seq.) The article discussed the recovery of punitive damages against the individual engaging in the reprehensible conduct and potentially your employer for authorizing and/or ratifying the unlawful conduct. The remainder of this article will briefly discuss some of the issues that you can expect to encounter when pursuing punitive damages in a FEHA claim.
Reprehensibility of Conduct
As discussed in previous articles regarding the remedies available in a retaliation claim, an employee pursuing punitive damages must meet a very high evidentiary standard to prevail. As opposed to the “preponderance of the evidence” standard applicable to the remaining elements of a FEHA claim including any other damages, an employee seeking punitive damages must prove by “clear and convincing evidence” that a defendant is guilty of fraud, malice or oppression. (California Civil Code §3294). Although the evidentiary standard is high, it is slightly lower than the standard applicable to criminal cases that is “beyond a reasonable doubt.” As punitive damages are meant to punish or deter similar conduct by the defendant in the future, the “clear and convincing standard” requires that an employee prove that it is highly probable that the defendant is guilty of fraud, malice or oppression.
Civil Code §3294(c) defines fraud, malice and oppression. Fraud will not be covered in this article, as malice and oppression are far more common in FEHA punitive damage claims. The definitions of malice and oppression in Civil Code §3294 are actually quite similar. In addition to an intention to cause harm, a party may be found liable for punitive damages if they engage in despicable conduct in willful and conscious disregard to the rights or safety of others and/or subject an individual to cruel and unjust hardship. (Civil Code section 3294[c]). An actual intent to harm is not required before a Defendant can be found liable for punitive damages.
There is an additional hurdle that an employee must meet when pursuing punitive damages from a corporate employer. The malicious or oppressive act must either have been committed by, authorized or ratified by “an officer, director or managing agent” of the corporate defendant. (Civil Code §3294[b]). The mere fact that the individual committing the egregious actions against you is your supervisor and had the authority to fire you will not qualify them as a managing agent of a corporate employer. In a nutshell, a managing agent must have sufficient discretion to implement or alter significant corporate policy so as to subject the corporate employer to punitive damages. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686)
Several additional factors come into play when pursuing punitive damages in FEHA causes of action. For example, a Plaintiff must provide sufficient evidence of the Defendant’s financial condition before a single dollar of punitive damages can be awarded. (Adams v. Murakami 54 Cal. 3d 105) Additionally, a punitive damage award must be in proportion to the amount of compensatory damages awarded by a judge or jury. The above two factors will not be discussed in great detail because they are both complicated and often hotly contested. It is therefore highly recommended that you consult with an experienced employment law attorney to help with your FEHA claim particularly the punitive damage component of the cause of action.
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If you have more questions about punitive damage claims or have been the victim of any form of discrimination or harassment in or out of the workplace, contact the Perrin Law Group today for a free consultation.