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April 06, 2010

No Threat to FEHA Fees

Daily Journal | By Lisa Jaskol


Despite predictions by some employers' counsel that the California Supreme Court's decision in Chavez v. City of Los Angeles (S162313, Jan. 14, 2010) will sharply limit attorney fee awards to prevailing plaintiffs in employment discrimination cases, the decision is far less sweeping than counsel might hope. Indeed, Chavez preserves the essence of California's Fair Employment and Housing Act (FEHA) and its attorney fee provision.

First a little background. FEHA is "a statutory expression of the fundamental policy against employment discrimination." (Terry Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 609.) FEHA's attorney fee provision, Government Code Section 12965(b), is a critical element of the statutory framework: "There is no doubt that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in [FEHA] and without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible." (Flannery v. Prentice (2001) 26 Cal.4th 572, 583.) Therefore, consistent with the statutory mandate to construe FEHA's provisions liberally to accomplish its legislative purpose (Government Code, Section 12993 (a)), courts must award attorney fees and costs to prevailing FEHA plaintiffs absent special circumstances that would render an award unjust. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.)

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