©2026 Seyfarth Shaw LLP www.seyfarth.com 2026 Cal-Peculiarities | 175 Under federal law, compensatory and punitive damages are not awarded for failures to provide reasonable accommodations when employers demonstrate they acted in good faith, in consultation with the disabled individual seeking an accommodation, to identify and offer a reasonable accommodation that would provide an equally effective opportunity and not cause an undue hardship for the business.99 The FEHA seems to have no such savings provision for employers that have acted in good faith. Highlighting the significance of this difference, the Court of Appeal has held that a reasonable-accommodation plaintiff, seeking damages for lost wages and emotional distress, need not prove an employer was motivated by ill will or animosity.100 The plaintiff was a deputy sheriff who, after taking a leave for his injured knee, was denied full reinstatement for many months because the employer mistakenly thought he could not safely perform his essential job functions. In his lawsuit for damages resulting from the delay in reinstatement, the trial court instructed the jury that he needed to prove that the employer had discriminated against him, and the jury ruled against him for failing to make that proof. The Court of Appeal reversed, holding that the plaintiff deserved a retrial because the jury instruction was erroneous. The Court of Appeal explained that the traditional notions of proving discrimination do not apply in reasonable accommodation cases, where there necessarily is direct evidence of the employer’s motivation. The Court of Appeal concluded that an employer denying an accommodation necessarily treats an employee differently “because of” a disability whenever the disability is a substantial motivating factor in the employer’s decision to subject the employee to an adverse employment action. The Court of Appeal held that the employer was liable, as a matter of law, for a failure to provide a reasonable accommodation, and remanded for a new trial as to damages. 6.4 Special Rules for Age Discrimination Even in California not every case makes it to trial. A 2020 Court of Appeal decision upheld summary judgment against the age discrimination claim of a medical assistant at a healthcare organization who was fired at age 66. Her supervisor and the organization’s executive director had expressed surprise at how old the plaintiff was. But their comments did not express age animus and neither commenter was in the chain of command regarding the decision to terminate her employment. In particular, expressing surprise at the plaintiffs’ age was insufficient to raise more than a weak suspicion of discriminatory animus where it was undisputed that the plaintiff had the physical appearance of a much younger person.101 6.4.1 Salary might not be an age-neutral criterion In America generally, an employer reducing its workforce to cut costs may select employees for dismissal on the basis of their higher salaries, even though a higher salary correlates with experience, which in turn correlates with age. In California it’s different. The FEHA declares that “the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group.”102 6.4.2 Adverse impact theory, with no RFOA defense Until 2005 there was debate over whether federal ADEA claimants could recover on a theory that an employer policy had an adverse impact on individuals over age 40. The U.S. Supreme Court then validated that theory of liability in age cases (just as it had in Title VII race cases). California, meanwhile, previously had declared that “the disparate impact theory of proof may be used in claims of age discrimination.”103 The main defense to a claim of adverse impact is that the policy in question is a business necessity, which is very difficult for an employer to prove. Federal law eases that burden on employers somewhat by recognizing that employers can defend an ADEA adverse-impact claim by showing that the challenged policy was based on reasonable factors other than age (RFOA).104
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