- California Supreme Court Requires Discrimination as Substantial Motivating Factor in Mixed Motive Cases, Limits Damages Available to Employees
- February 13, 2013 | Authors: Jamerson C. Allen; Mark S. Askanas; Cynthia L. Filla
- Law Firms: Jackson Lewis P.C. - San Francisco Office ; Jackson Lewis P.C. - Los Angeles Office
To establish liability in “mixed motive” employment discrimination cases under the California Fair Employment and Housing Act (FEHA), the employee must show that unlawful discrimination was a substantial factor motivating the adverse employment decision, the California Supreme Court ruled. Harris v. City of Santa Monica, No. S181004 (Cal. Feb. 7, 2013). However, if the employer proves that it would have made the same decision absent such discrimination, a court may not award damages, back pay, or order reinstatement, but the employee may be entitled to declaratory and injunctive relief, as well as attorney’s fees and costs.
The Court also ruled that the jury instruction given in the case, a standard pattern jury instruction used by state courts in similar cases, was erroneous because it required the jury to determine whether discrimination was “a motivating factor/reason” for the employee’s termination. A jury in a mixed motive case now should be instructed that it must find the employer’s action was substantially motivated by discrimination, before the burden shifts to the employer to make a same-decision showing.
In October 2004, the City of Santa Monica hired Wynona Harris as a bus driver trainee. During her probationary period, Harris had two “preventable accidents” and failed to report for her assigned shift. Harris received a three-month written performance evaluation with a “further development needed” rating. One month after her evaluation, Harris again failed to report for her assigned shift. Thereafter, the City’s Transit Services Manager, Bob Ayer, determined that Harris did not meet the City’s standards for continued employment and decided to terminate her. About one week later, Harris told her immediate supervisor that she was pregnant. Two days later, Ayer terminated Harris. Harris sued the City for pregnancy discrimination. The case went to trial, with a jury instruction that the City would be liable if Harris’s pregnancy was a “motivating factor” in its termination decision.
The jury returned a verdict for Harris, and the City appealed. It argued the trial court’s refusal to give the mixed motive instruction prejudiced the City. The Court of Appeal agreed with the City and remanded the case for a new trial. The California Supreme Court granted review to address the standard of proof in mixed motive cases under the FEHA. (For additional details regarding this case, please see California Court: Pregnancy Discrimination Case Calls for Mixed Motive Jury Instruction.)
The High Court Forges a Compromise Burden of Proof, Rejects Jury Instruction, and Limits Available Damages
The City argued that it should not be held liable unless discrimination was the “but-for” cause of the employment decision, while Harris argued that the correct standard of proof was whether discrimination was “a motivating factor” in the decision. The Court rejected both positions. After reviewing the FEHA’s language and purpose, as well as federal law interpreting Title VII of the Civil Rights Act of 1964, the Court forged a compromise standard requiring the employee to show by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination and allowing the employer to prove by a preponderance of the evidence that it would have made the same decision absent such discrimination. The Court emphasized that it is not enough for the employer to prove that the same decision would have been justified or that it had a legitimate and sufficient reason for its decision, if that reason did not motivate it at the time of the decision.
Jury Instruction was Erroneous
In light of the new burden of proof, the Court ruled that the jury instruction was erroneous because it required the jury to determine whether discrimination was “a motivating factor/reason” for Harris’s termination. The Court held that the jury should have been instructed to determine “whether discrimination was a substantial motivating factor/reason.” The Court directed the trial court on remand to determine in the first instance whether the evidence of discrimination in the case warranted such an instruction.
If the employer proves that it would have made the same employment decision regardless of any discrimination, then the employee’s damages are limited. On the issue of economic damages, the Court found that awarding back pay and front pay would result in “an unjustified windfall” to the employee because the employer would have terminated the employee in any event. The Court also observed that allowing such damages also would unduly limit “the freedom of employers to make legitimate employment decisions.”
No Compensatory Damages
Turning to the question of compensatory damages, the Court reached the same conclusion, “although the issue [was] closer.” The Court noted that, although an employment decision motivated in substantial part by discrimination inflicts “dignitary harm” on the employee, the Court remained “reluctant to find such harm compensable in damages under the FEHA when other, nondiscriminatory factors” would have caused the employee’s termination. The Court found that, while theoretically it may be possible to distinguish between an employee’s emotional distress caused by unlawful discrimination and that arising from the termination, as a practical matter, it was “unrealistic” to ask the trier of fact to “parse the plaintiff’s past mental state so finely,” so as to award damages related only to the discrimination. The Court concluded that “such distress is not compensable under the FEHA - indeed, compensation for such distress would be a windfall to the employee - if the employer proves it would have fired the employee anyway for lawful reasons.”
Injunctive and Declaratory Relief and Attorney’s Fees Available
Although the Court declined to permit economic and compensatory damages in a mixed motive case, it ruled that an employee may be entitled to declaratory and injunctive relief, as well as attorney’s fees and costs. Declaratory relief may “reaffirm the plaintiff’s equal standing among her coworkers and community” and condemn discriminatory employment policies or practices. Also, a court may grant injunctive relief where appropriate to stop discriminatory practices.
Turning to attorney’s fees, the Court found that, as between employer and employee, it was “appropriate that the employer pay reasonable attorney’s fees and costs for litigation for which its own wrongdoing has been shown to be substantially responsible.” The Court also found that a fee and cost award would not result in a windfall to the employee. Rather, the award would compensate the employee and her counsel for bringing a meritorious claim and would promote the FEHA’s goal of deterring discrimination.
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The California Supreme Court's decision in Harris is significant in that it places a higher burden on plaintiffs by eliminating the form jury instruction that an employee only has to show discrimination was “a motivating reason” for the termination. The instruction will now be that the employee must prove that discrimination was “a substantial factor” motivating the termination.