Theories of Liability & Common Defenses
Plaintiff's Theories of Liability
FEHA DiscriminationGov. Code § 12940
The Fair Employment and Housing Act prohibits employment discrimination based on race, sex, national origin, disability, age, religion, sexual orientation, gender identity, and numerous other protected characteristics. Disparate treatment claims require proof of intentional discrimination; disparate impact claims can be established through statistical evidence showing a facially neutral policy disproportionately harms a protected group. The McDonnell Douglas burden-shifting framework applies to circumstantial evidence cases.
Sexual HarassmentGov. Code § 12940(j); DFEH
California recognizes two forms: quid pro quo harassment (conditioning employment benefits on sexual submission) and hostile work environment (severe or pervasive conduct that alters working conditions). California's standard is more protective than Title VII — employers with five or more employees are covered (not the federal 15-employee threshold), and a single egregious incident can establish a hostile environment. FEHA also covers harassment by non-employees if the employer knew or should have known.
RetaliationGov. Code § 12940(h); Lab. Code § 1102.5
Retaliation for opposing unlawful employment practices, filing a DFEH complaint, or participating in an investigation is independently actionable. Labor Code § 1102.5 — California's broad whistleblower protection — covers disclosures of violations of state or federal law or regulation and now extends to complaints about unsafe working conditions. Protected activity must be a "contributing factor" in the adverse employment action under the California standard (not the stricter federal "but for" standard).
Wrongful Termination in Violation of Public PolicyTameny v. Atlantic Richfield (1980)
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 established that an at-will employee discharged for reasons violating a fundamental, substantial, and well-established public policy has a tort claim for wrongful termination — even without an independent statutory claim. Common predicate public policies include: FEHA; Labor Code provisions on wages, leave, and retaliation; workers' compensation protections; and constitutional rights. Tort damages, including non-economic and punitive damages, are available.
PAGA ClaimsLab. Code § 2698 et seq.; AB 2288
The Private Attorneys General Act allows aggrieved employees to bring representative actions for civil penalties for Labor Code violations on behalf of themselves and other current or former employees. After 2024 reform (AB 2288/SB 92), penalties for cured violations are capped, courts have manageability tools to limit representative groups, and 35% of net penalties go directly to aggrieved employees. PAGA claims cannot be compelled to individual arbitration under Adolph v. Uber (2023).
Wage & Hour ViolationsLab. Code §§ 510, 512; IWC Wage Orders
California's wage-and-hour regime is among the nation's most protective: overtime at 1.5× after 8 hours/day and 40 hours/week; meal periods of 30 uninterrupted minutes for shifts over 5 hours; rest periods of 10 minutes for every 4 hours worked; and premium pay of one additional hour's wages for each missed meal or rest period. IWC Wage Orders vary by industry and may impose requirements beyond the baseline statutes.
Common Defense Theories
Legitimate Non-Discriminatory ReasonMcDonnell Douglas Framework
Under the McDonnell Douglas burden-shifting framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action. If the employer does so, the burden shifts back to the plaintiff to show the reason is pretextual. Employers invest heavily in documenting performance issues and disciplinary histories — the paper trail before termination is often decisive.
At-Will Employment / Lack of ContractLab. Code § 2922
California's default employment relationship is at-will: either party may terminate for any reason or no reason. The defense will argue the plaintiff was an at-will employee who cannot show the termination violated a specific statutory prohibition or clear public policy. However, the at-will doctrine offers no protection against discrimination, harassment, or retaliation — it is only a defense to pure wrongful termination claims lacking a statutory or public-policy predicate.
Arbitration Agreement DefenseFAA; EFAA (2022)
Employers frequently compel individual arbitration under pre-dispute arbitration agreements. The Federal Arbitration Act preempts most California limitations on such clauses. However, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA, 2022) allows plaintiffs to elect out of arbitration for sexual harassment and assault claims — a significant exception. PAGA representative actions also cannot be fully compelled to arbitration under Adolph v. Uber (2023) 14 Cal.5th 1104.
Same-Actor InferenceEmployment Discrimination Defense
When the same person who hired the plaintiff also made the challenged adverse employment decision, courts may apply the "same actor inference" — that an employer who hired a person of a protected class is unlikely to have harbored discriminatory animus toward that class later. The inference is permissive, not mandatory, and is weakened by elapsed time and changed circumstances.
Waiver / Release DefenseOWBPA; ADEA; FEHA
Severance agreements typically include broad releases of employment claims. Under the Older Workers Benefit Protection Act (for ADEA claims), releases must comply with specific disclosure, consideration, and revocation-period requirements. California releases of FEHA claims must be specific and knowing to be enforceable; PAGA penalties cannot be waived by a private settlement without PAGA agency approval; and § 1542 waivers must be explicit.
Managerial Discretion / Business NecessityDisparate Impact Defense
For disparate impact claims, an employer may defend by demonstrating that the challenged practice is job-related for the position and consistent with business necessity. Even if the plaintiff establishes a disparate impact, the employer can prevail by demonstrating the necessity of the practice and the absence of a less-discriminatory alternative that would serve the same legitimate purpose.
This analysis is for informational purposes only and does not constitute legal advice. Consult qualified counsel for advice specific to your situation. Attorney advertising.
Evaluating a Employment Law matter? Our attorneys are available for a confidential consultation.
Speak With an Attorney