MCLE Self-Study: A Refresher on and Thoughts About Unconditional Offers of Reinstatement

By Andrew H. Friedman and Taylor Markey

Andrew H. Friedman is a partner with Helmer Friedman LLP in Beverly Hills. Mr. Friedman represents individuals and groups of individuals in employment law, consumer rights, and personal injury cases. Mr. Friedman served as Counsel of Record in Lightfoot v. Cendant Mortgage Corp. (Case No. 10-56068), where he successfully convinced the U. S. Supreme Court to grant the petition for certiorari that he filed on behalf of his clients. In January 2017, the Supreme Court, in a unanimous decision authored by Justice Sotomayor, reversed the Ninth Circuit and ruled in favor of Mr. Friedman’s clients. Mr. Friedman is the author of Litigating Employment Discrimination Cases (James Publishing 2005-2018). Taylor Markey is an attorney with Helmer Friedman LLP in Beverly Hills. Ms. Markey represents individuals and groups of individuals in employment law, consumer rights, and personal injury cases. Prior to joining Helmer Friedman LLP, Ms. Markey clerked for the Honorable Justice Norman L. Epstein of the California Court of Appeal, Second District, Division Four.

I. Introduction

The U.S. Supreme Court has explained that "cooperation and voluntary compliance" (as opposed to litigation "proceeding at its often ponderous pace") are the preferred means to accomplish the primary objective of Title VII—i.e., ending employment discrimination.¹ In a supposed effort to accomplish this objective, the Court, in Ford Motor Co.,² accepted a then-new rule "providing employers who have engaged in unlawful hiring practices with a unilateral device to cut off" ³ some, or potentially even all, liability for economic damages that would otherwise be owed "to the victims of their past discrimination."⁴ Absent special circumstances (which, as discussed below, went undefined), the Court held that employers could use this rule to toll the accrual of front and back pay damages by making so-called "unconditional offers of reinstatement" to fired employees.⁵ Notwithstanding the fact that unconditional offers of reinstatement are, in the vast majority of cases, nothing more than insincere attorney-driven artifices designed solely to minimize damages with no expectation or hope (but rather trepidation) that the employees will actually accept them, some courts have applied this federal doctrine to California state law employment cases, finding the doctrine to be in accord with the state’s longstanding rule that wrongfully fired employees have a duty to mitigate their damages by seeking substantially similar employment.⁶