Just after I posted thoughts on recent unpublished opinions, today the California Supreme Court issued an opinion in which it concluded that the after-acquired evidence and unclean hands doctrines are not complete defenses to FEHA claims, but they do affect damages.
In this case, plaintiff obtained a job using a fake Social Security number and putting false information on an I-9 Form. Plaintiff later sued his employer, who, during discovery, found out about plaintiff’s use of a fake Social Security Number, the falsified Form I-9 and plaintiff’s unauthorized work status.
Employer filed a motion for summary judgment, alleging unclean hands and after-acquired evidence, which the trial court denied. Employer sought a write of mandate from the Court of Appeal who issued an alternative writ causing the trial court to vacate the order denying MSJ and entering an order granting employer’s MSJ.
The Court discussed preemption and concluded FEHA is not preempted by federal immigration law but that federal preemption does bar an award of lost pay damages under FEHA for any period of time after an employer’s discovery of the employee’s eligibility under federal law to work in the United States.
Obviously this helps defendant employers to some extent, but often in FEHA cases attorney’s fees and awards of emotional distress can dwarf damages for lost future income.
Vicente Salas v. Sierra Chemical Co., S196568 (June 26, 2014).