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).