California Supreme Court Articulates the Mixed Motive Defense for Employers

July 26, 2013

By: Gary Kessler

In the recent case of Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), the California Supreme Court clarified the “mixed motive defense” that employers frequently use in litigation. The mixed motive defense generally applies where, although the plaintiff has shown an employer’s intentional discrimination, the employer has also proved it would have made the same adverse employment decision against the plaintiff even in the absence of any discrimination.

In Harris, the plaintiff was a bus driver for the City of Santa Monica and alleged she was fired because of her pregnancy in violation of California’s Fair Employment and Housing Act (FEHA). The City’s defense was that it had legitimate, nondiscriminatory reasons to fire Harris. The City asked the trial court to instruct the jury that if it found a mix of discriminatory and legitimate motives, the City could avoid liability by showing it had a legitimate reason to fire the plaintiff. The trial court refused the instruction and told the jury that plaintiff only had to prove that her pregnancy was “a motivating factor/reason for the discharge.” The jury found in favor of plaintiff and awarded her $177,905 in damages.

The California Supreme Court reversed the jury’s verdict and established important rules in mixed motive cases.

The Court held that the trial court’s jury instruction was incorrect. Instead of only having to prove that her pregnancy was “a motivating reason” for her discharge, the plaintiff should be required to prove that her pregnancy was “a substantial motivating reason” for her termination. If the plaintiff is able to do so, then the burden shifts to the employer to prove that it would have made the same decision in any case for non-discriminatory reasons.

The Court also determined what remedies, if any, are available to the plaintiff where the mixed motive defense applies. The Court held that, where the employer proves it would have made the same employment decision regardless of any discriminatory reason, the employee is not entitled to an order of reinstatement or backpay, and may not recover any damages from the employer. However, the Court did provide an employee with three types of remedies in such cases: declaratory relief (i.e., a judicial declaration of employer wrongdoing); injunctive relief (i.e., ordering an employer to stop discriminatory practices where appropriate); and an award of reasonable attorney’s fees expended to redress, prevent, or deter discrimination.

The Harris case is welcome news for employers because it increases the burden of proof that an employee must satisfy: the employee must prove that discrimination was a “substantial” motivating reason for termination, not just “a” motivating reason for termination. And significantly, if the employer proves it would have made the same employment decision for non-discriminatory reasons, the employee is not entitled to recover any monetary damages.

But as the Court observed, “the unavailability of damages upon an employer’s same-decision showing does not make a finding of unlawful discrimination an empty gesture.” An award of reasonable attorney’s fees to the plaintiff could be significant by itself.

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