This post was also written by Paul D. Fogel.

On February 7, 2013 the California Supreme Court issued its much-awaited opinion in Harris v. City of Santa Monica, announcing whether and to what extent a “mixed motive” defense is available to an employer under the Fair Employment Housing Act (“FEHA”). Although a mixed bag, the holding favors employers where damages and reinstatement are concerned. As the Court put it:

In sum, we construe section 12940(a) as follows: When 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. If 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. However, where appropriate, the plaintiff may be entitled to declaratory or injunctive relief. The plaintiff also may be eligible for an award of reasonable attorney’s fees and costs under section 12965, subdivision (b).

Harris, a Santa Monica City bus driver, had several performance-related problems during her probationary period, including two accidents that found her at fault — including one that damaged her bus — and reporting late to her shift twice without providing policy-required one-hour notice. Together, these incidents dictated termination under the City’s policies. The transit services manager and director — neither of whom directly supervised her —  jointly decided to discharge Harris. Prior to that decision, however, Harris told her supervisor she was pregnant. According to Harris, her supervisor appeared “displeased” at her news and requested her to get a doctor’s note clearing her to continue to work. She did. Days later, Harris’ supervisor received a list of probationary employees, including Harris, earmarked for discharge. Shortly thereafter, the City terminated Harris’s employment.

Harris sued for pregnancy discrimination. At trial, the City requested a jury instruction that the City not be held liable if it proved that it would have discharged Harris for legitimate business reasons even if the jury concluded that pregnancy was a motivating factor in the termination decision – the so-called “mixed motive” defense. The trial court denied the City’s request and instead instructed the jury that the City was liable if Harris proved simply that pregnancy was a “motivating factor” in the termination decision.

The jury found that pregnancy was a motivating factor in the City’s decision and awarded Harris $150,000 for emotional distress, $25,000 for lost wages, and $400,000 in attorneys’ fees. The City appealed.  The Court of Appeal reversed the judgment, holding that the trial court should have granted the City’s requested instruction. That triggered Harris’ appeal to the California Supreme Court.

The key points from the Supreme Court in Harris were:

  • The FEHA requires proof, by a preponderance of the evidence, that discrimination was a “substantial factor” that motivated his or her employment termination — not a “motivating factor” as argued by Harris. If the plaintiff fails to make this showing, the defendant is entitled to judgment.
  • If a plaintiff proves that discrimination was a “substantial factor,” the employer has the right to show, also by a preponderance, that it would have made the same decision at the time, for legitimate, nondiscriminatory reasons.
  • If the employer makes the “same decision” showing, the plaintiff cannot recover damages, back pay, or be reinstated, but “where appropriate,” may obtain declaratory or injunctive relief and attorneys’ fees and costs.
  • If the employer fails to make the “same decision” showing, the plaintiff can seek and potentially recover damages, back pay, reinstatement, declaratory or injunctive relief, as well as attorneys’ fees and costs.

Significantly for employers, this decision may force plaintiffs to think, long and hard, before filing lawsuits where the employer has solid evidence demonstrating that an employment termination decision was for legitimate non-discriminatory and non-retaliatory reasons. In addition, now that the plaintiff’s burden of proof has been clarified and the “same decision” defense has expressly been made available to damages and reinstatement, this opinion should make it somewhat easier for employers to obtain summary judgment.

Here is the full Harris opinion.