by Sayema Hameed
The California Supreme Court has issued an important decision on the use of the “mixed motive” defense in employment discrimination cases brought under California’s Fair Employment and Housing Act (“FEHA”), ruling that employers will not be liable for damages such as back pay in employment discrimination cases where the employee would have been fired for legitimate business reasons in the absence of the discrimination.
FEHA prohibits employment discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. In order to prove employment discrimination, a plaintiff must show that the unlawful discrimination was a “motivating factor” or reason for the employer’s adverse employment action (such as termination, demotion, etc.) against the employee.
Employers commonly assert the “mixed motive” defense to defeat employment discrimination claims. Under the mixed motive defense, if the employer can prove that it would have made the same adverse employment decision based on a legitimate reason, standing alone, even if no discrimination was present, then the employer will not be liable under FEHA.
In Harris v. City of Santa Monica (Cal. Sup. Ct. Case No. S181004, filed February 7, 2013), the California Supreme Court was asked to determine whether FEHA allows the “mixed motive” defense. The Supreme Court held as follows:[blockquote]We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. In light of FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.[/blockquote]
Wynona Harris was hired as a bus driver trainee by the City of Santa Monica’s bus service, Big Blue Bus, in October 2004. Shortly into her 40-day training period, Harris had an accident which the City deemed “preventable.” In November 2004, the City made Harris a probationary part-time bus driver, an at-will position. During her three-month probationary period, Harris had a second accident in which she sideswiped a parked car. Harris reported late to her shift in February 2005 and April 2005. On May 12, 2005, Harris notified her supervisor that she was pregnant, and the supervisor reacted with apparent displeasure. On May 16, Harris gave her supervisor a doctor’s note permitting her to work with limited restrictions. The same day, Harris’ supervisor received a list of probationary drivers who were not meeting standards for continued employment. Harris was on the list. Her last day on the job was May 18, 2005.
In October 2005, Harris sued the City, alleging pregnancy discrimination by the City. The City asserted an affirmative defense that it had legitimate, nondiscriminatory reasons to fire Harris. The case went to jury trial. The City asked the trial court to instruct the jury on the mixed motives defense, but the court refused. By a vote of 9 to 3, the jury found that pregnancy was a motivating reason for the City’s termination of Harris and awarded her $177,905 in damages. The trial court also awarded Harris attorney’s fees of $401,187.
On appeal, the Court of Appeal concluded that the trial court erred by refusing to instruct the jury on the mixed motives defense, but the court also determined that there was substantial evidence supporting the jury verdict that Harris had been fired because of pregnancy discrimination. The Court of Appeal therefore remanded for a new trial, but Harris petitioned the California Supreme Court to decide with the mixed motive jury instruction is correct under the law.
On petition review, the California Supreme Court explained that the traditional FEHA inquiry “aims to ferret out the ‘true’ reason for the employer’s action,” whether legitimate or discriminatory, but in a mixed motives case, there is no single “true” reason for the employer’s action. The Supreme Court then asked:[blockquote]What is the trier of fact to do when it finds that a mix of discriminatory and legitimate reasons motivated the employer’s decision? That is the question we face in this case.[/blockquote]
After analyzing the language and legislative history of the FEHA statute as well as federal precedent, the Supreme Court concluded that, under FEHA, proof that discrimination was a substantial motivating factor, rather than simply a motivating factor, in an employment decision triggers FEHA, even if other nondiscriminatory factors would have led the employer to make the same employment decision in the absence of the discrimination. However, in order to prevent the plaintiff from receiving an unjust windfall, the plaintiff cannot recover economic or non-economic damages under FEHA for a termination or other employment action caused by mixed motives.
The Supreme Court pointed out that a plaintiff in a mixed motives case can still seek emotional distress damages through tort claims such as intentional infliction of emotional distress, or in unlawful harassment cases under FEHA. However, a termination decisions substantially motivated by discrimination is not compensable in damages under FEHA when an employer proves that it would have terminated the employee anyway for nondiscriminatory reasons.
Although a plaintiff cannot recover damages when an employer proves a mixed motive defense, the plaintiff can still obtain a judicial declaration of the employer’s unlawful discrimination and injunctive relief to stop the employer’s discriminatory practices. The plaintiff may also be eligible to recover reasonable attorney’s fees and costs, because “requiring an employer to absorb the costs of litigation for which its own wrongdoing is substantially responsible furthers the FEHA’s goal of preventing and deterring unlawful employment practices.”
In summary, the Supreme Court held as follows: when a plaintiff has shown by a preponderance of evidence that discrimination was a substantial factor motivating his or her termination, the burden shifts to the employer to demonstrate that legitimate, nondiscriminatory reasons would have led the employer to make the same termination decision. If the employer proves by a preponderance of evidence that it would have made the same decision for legitimate reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement. However, the plaintiff may be entitled to declaratory or injunctive relief and attorney’s fees and costs.
Thus, the California Supreme Court affirmed the Court of Appeal’s judgment overturning the damages verdict in this case (Harris v. City of Santa Monica (2010) 181 Cal. App.4th 1094) but remanded the case for further proceedings in accordance with its instructions.
This decision represents a significant victory for employers, but it does not eradicate all potential liability in mixed motive cases, as employers can still be held liable for attorney’s fees, as well as for emotional distress and punitive damages through tort claims.