Determining Liability in “Mixed Motive” Employment Discrimination Cases: Part II

April 15, 2013

Employment Law BookThe California Supreme Court’s recent decision in Harris v. City of Santa Monica, __ Cal.4th __, 152 Cal.Rptr.3d 392, 294 P.3d 49 (2013), establishes for the first time a clear standard for determining liability in “mixed motive” employment discrimination cases.

Factual Background

Santa Monica’s city-owned bus service hired the plaintiff, Wynona Harris, as a bus driver trainee in October 2004. The city’s policies require that new drivers go through a 40-day training period, followed by a probationary period during which they are at-will employees. Harris completed her training period, but was terminated during her probationary period.

Shortly into her training period, Harris got into an accident that the city deemed “preventable.” Despite the accident, the city allowed her to become a probationary employee. During this probationary period, Harris got into a second preventable accident. She also failed to give her supervisor sufficient notice that she would not be reporting to her shift on two occasions. Her probationary performance review rated her as in need of “further development.”

During a chance encounter in May 2005, Harris told her supervisor that she was pregnant. According to the plaintiff, her supervisor reacted with seeming displeasure, exclaiming: “Wow. Well, what are you going to do? How far along are you?” He then requested that she provide a doctor’s note clearing her to continue working. Four days later, the day Harris provided her supervisor with her doctor’s  note, the supervisor attended a meeting at which he received a list of probationary drivers who were not meeting standards for continued employment, including Harris. Her employment was terminated effective May 18, 2005.

Litigation History

The plaintiff sued, alleging that the city fired her because she was pregnant, a form of sex discrimination. At the trial, the city asked the trial court to instruct the jury with BAJI 12.26 which sets forth the “but for” standard of causation “mixed-motives” cases. Under BAJI 12.26, even if the employer is motivated in part by discriminatory intent, the employer is not liable if it can establish that it would have fired the plaintiff anyway for legitimate reasons, such as poor performance. The trial court refused the city’s proposed instruction and instead gave California Civil Jury Instruction (CACI) 2500, which required the plaintiff to prove only that her pregnancy was a “motivating factor/reason for her discharge.”  In a nine-to-three vote, the jury found that the plaintiff’s pregnancy was, in fact, a motivating reason for her termination and awarded her $177,905 in damages, of which $150,000 were for non-economic losses, including mental suffering.

The court of appeal reversed, holding that BAJI 12.26 accurately states California law and that the trial court’s refusal to give the instruction constituted prejudicial error. The California Supreme Court granted review and has now ruled that neither the trial court nor the court of appeal accurately stated the meaning of § 12940’s “because of” language in the context of mixed motive cases.

The Supreme Court’s Analysis

The supreme court held that the trial court erred in holding that plaintiffs need only show that discrimination was a motivating factor. The supreme court explained that discrimination must be a “substantial” motivating factor. The court also disagreed with both lower courts’ analysis of the legal effect of plaintiff’s carrying her burden. The supreme court ruled that if plaintiff carries her burden of showing by a preponderance of the evidence that discrimination was a substantial motivating factor, the employer is entitled to demonstrate by a preponderance of the evidence that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time it made its actual decision. But the supreme court rejected the court of appeal’s holding that the employer’s showing, if successful, is an absolute bar to liability. The supreme court ruled that while the employer’s showing precludes recovery of  damages, or an order of reinstatement, the plaintiff may be entitled to declaratory or injunctive relief, to an award of reasonable attorney’s fees and costs under Government Code § 12965, subdivision (b).

Unable to find clear guidance in the legislative history of the California’s Fair Employment and Housing Act or in federal cases interpreting similar language in federal statutes, the supreme court based its ruling on the California Legislature’s expressed goals in enacting the FEHA: (1) redressing the consequences of employment discrimination; and, (2)  deterring unlawful employment practices. In light of those goals, the court found that if a plaintiff would have been terminated, even in the absence of any discriminatory intent, it made no sense under the FEHA to provide that plaintiff with a financial windfall in the form of financial damages. On the other hand, where a plaintiff has proven that discrimination was a substantial motivating factor for the adverse employment action, it likewise did not make sense to absolve the employer of all liability, even though that plaintiff was rightfully terminated for other reasons. The court therefore determined that in such circumstances the approach most consistent with the FEHA’s dual purpose was to allow declaratory relief, injunctive relief, and reasonable attorneys’ fees incurred in bringing the lawsuit, at the discretion of the trial court.