Are there any Affirmative Defenses Employers Can Rely Upon to Defeat Employment-related Claims made by Employees?

Yes, the good news is that there are a lot of affirmative defenses that are raised by the employer typically when it files an answer to a civil complaint (i.e., lawsuit) that if proven will defeat one or more claims alleged by an employee, in whole or in part.  

The most common affirmative defenses include, but are not limited to:

  • Failure to state a claim upon which relief can be granted;
  • Barred by the Statute of limitations;
  • Failure to exhaust administrative remedies required by state or federal laws;
  • No standing to assert the claims or causes of action within the Complaint;
  • Lack of Jurisdiction;
  • Barred by Res Judicata and/or Collateral Estoppel;
  • Preempted by state or federal laws;
  • Improper Venue;
  • Not employed by Defendant;
  • Barred by Negligence/Fault of others;
  • Laches (plaintiff unreasonably delayed in seeking the relief requested to the prejudice of defendant);
  • Waiver (plaintiff failed to object to the alleged conduct of defendant and has voluntarily relinquished known rights);
  • Estoppel (plaintiff's separate, individual deeds, conduct, omissions and actions led defendant to rely reasonably and properly on such with respect to the transactions at issue);
  • Barred by unclean hands or after-acquired evidence:
  • Privileged:
  • Barred by Business Judgment Rule:
  • Barred by Avoidable Consequences Defense;
  • Prompt Corrective Action was taken;
  • Mixed Motive defense; and
  • Employed at-will/Lawful Termination.
Lisa Sherman
California Labor & Employment Attorney