When a California business discriminates against an employee due to his or her age, sex or religion, the employee may lose out on a certain amount of income and other fringe benefits. If the employee files a lawsuit under Title VII as a result, he or she could recover back pay damages which compensate the employee for this lost income and other benefits that would have been earned if he or she was not discriminated against.
In an employment discrimination case, it is usually the judge who determines how much in back pay an employee should be compensated for. This is because back pay is equitable relief and not legal relief. However, there are cases where federal or state statutes may allow the jury to decide the amount in back pay, though this is less common. A employee will receive the difference between what the company would have provided if the employee was not discriminated against and what the employee was actually paid.
Even if an employee is able to prove that he or she is owed back pay, the employer can still mount a defense. The two most commonly used strategies include the failure on the employee's part to mitigate damages and evidence acquired after the fact that shows that the back pay award should be limited or reduced based on new evidence.
In the state of California, employers cannot discriminate against an employee on the basis of a number of protected classes, including race, gender, sex, age and disability. Because there are consequences, employers that do discriminate may attempt to hide the true reason for failing to promote a deserving employee or firing an employee by creating other reasons for the decision. However, an employment rights attorney may submit evidence that proves that an employee was discriminated against.