Daily Blast February 7, 2013

On February 7, 2013, the California Supreme Court issued an opinion in Harris v. City of Santa Monica (February 7, 2013, S181004) ____ Cal.4th ____, analyzing what the proper course of action is for the trier of fact when the trier of fact finds that a mix of discriminatory and legitimate reasons motivated the employer’s decision to terminate the employee plaintiff. (Slip. opn, p. 7.) The Supreme Could held 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.” (Id. at pp. 1-2.)

Plaintiff, a bus driver claimed that she was fired by the City of Santa Monica because of her pregnancy in violation of the prohibition on sex discrimination in the Fair Employment and Housing Act (FEHA). (Slip opn., p. 1.) The City argued that it fired plaintiff for poor job performance. (Ibid.)  At trial, the City asked the court to instruct the jury in accordance with BAJI No. 12.26, which states that if the jury finds a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led to make the same decision to fire the plaintiff. (Id. at p. 4.) The court refused to issue this instruction and instead gave CACI No. 2500, which required the jury to determine whether discrimination was “a motivating factor/reason” for plaintiff’s termination. (Id. at pp. 4-5.) The Court of Appeal reversed, holding that the requested instruction was legally correct and that refusal to give it was prejudicial error. (Id. at p. 5.) The Supreme Court granted review to determine whether BAJI No. 12.26’s mixed-motive instruction was correct. (Ibid.) 

The Supreme Court analyzed section Government Code section 12940, subdivision (a), which “prohibits an employer from taking an employment action against a person ‘because of’ the person’s race, sex, disability, sexual orientation or other protected characteristic.” (Slip opn., p. 7.) “The phrase ‘because of’ means there must be a causal link between the employer’s consideration of a protected characteristic and the action taken by the employer.” (Ibid.) However, the statute is unclear as to the kind or degree of causation required. (Ibid.) The Supreme Court stated that in mixed-motives cases the test is whether an illegitimate criterion was a substantial factor in the particular employment decision. (Id. at p. 30.) The court reasoned that “[r]equiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.” (Ibid.) Therefore, the jury should be instructed to determine whether discrimination was “a substantial motivating factor/reason” and not just “a motivating factor/reason” for termination. (Id. at p. 31.) The court concluded that “[w]hen a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time.” (Id. at p. 42.) According to the court, “f the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement.”  (Ibid.)  However, the employer does not escape liability. (Id. at pp. 1-2.) The plaintiff may receive declaratory or injunctive relief and an award of reasonable attorney’s fees and costs under section 12965, subdivision (b). (Id. at pp. 42-43.)