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

April 11, 2013

Employment Law BookThe central issue in most employment discrimination and wrongful termination cases is the causal relationship between the employer’s consideration of a protected characteristic—such as race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation—and the action taken by the employer.

The analysis is relatively simple if one presupposes that the employer had a single reason for taking adverse action against the employee and that reason is either discriminatory or legitimate. In employment discrimination cases that do not involve mixed motives, most courts apply the three-stage burden-shifting test established by McDonnell Douglas Corp. v. Green, 411 U.S. 792.

McDonnell Douglas Single Motive Test

Under McDonnell Douglas, a plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer’s proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive.

Limitations of Single Motive Test

The McDonnell Douglas test aims to ferret out a single “true” reason for the employer’s action. But the presumption that a single explanation exists for an employer’s action ignores the complexity of human relationships. Even in cases where the “employer” is an individual, the employer’s decision to terminate an employee may not have a single cause with a simple explanation. The employee may have performance problems but the employer’s sexism or racial prejudice may influence the manner in which the employer addresses the problem or the employer’s willingness to assist the employee in correcting the problem. Distilling an explanation for a termination from the constellation of facts surrounding the employer’s action becomes even more complicated when the “employer” is a large organization with multiple people involved in the decision, especially when the person with ultimate responsibility for the decision does not directly supervise the employee and relies on information provided by those who do.

When an employer has mixed motives for taking adverse employment action against an employee, the degree of causal connection required between the employer’s discriminatory motive and the employment action becomes outcome determinative. State employment discrimination statutes typically prohibit employers from taking adverse employment actions “because of” a protected characteristic. California Government Code § 12940. Linguistically, the phrase “because of” has at least three plausible meanings: (1) the discrimination was a “but for” cause of the employment action because the action would not have happened in the absence of the discrimination; (2) the discrimination was a “substantial factor” in the employment action; and (3) the discrimination was simply a motivating factor.

The rulings of the trial court, the court of appeal, and ultimately the California Supreme Court in  Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), illustrate each of these approaches. I will examine each court’s opinion in my next post.