The trial court may award attorney’s fees at its discretion when an employer has discriminated against a disabled employee. However, such an award is discretionary, and not mandatory. The trial court is not required to award attorney’s fees on employer discrimination.
Bustos v. P.E.T. Global, Inc. Court of Appeal, Fourth Appellate District, Division One, January 16, 2018 was an appeal from a discrimination case. Bustos sued his former employer for discrimination.
There was a jury trial. The jury returned verdicts for the defense on each of Bustos’ claims. However, the jury did make a finding of fact that “…physical condition or perceived physical condition was “a substantial motivating reason” for his termination….”
Bustos motioned for attorney’s fees on the authority of Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris). Harris held that “a plaintiff subject to an adverse employment decision in which discrimination was a substantial motivating factor may be eligible for reasonable attorney’s fees and costs expended for the purpose of redressing, preventing, or deterring that discrimination,” even if the discrimination did not “result in compensable injury” for that particular plaintiff. (Id. at p. 235.)
Bustos appealed. The Appellate Court found that any award under Harris was discretionary, and not mandatory. The Appellate Court held that the trial court did not abuse its discretion.
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