Governor Reinforces Mixed Motive Win For Employers In FEHA Cases

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Earlier this year, in Harris v. City of Santa Monica, the California Supreme Court gave employers an unexpected win when it approved of the “mixed motive” theory of proof. As a result, in discrimination cases under the Fair Employment and Housing Act, an employer could defeat an employee’s claim for damages if it can show that it would have terminated the employee anyway. At the time, we predicted that the Legislature was bound to try to overturn Harris.

And so it was.  In mid-September, the Legislature passed Senate Bill 655, which would have effectively reversed the holding in Harris.  

But, in a stunning turn, Governor Jerry Brown vetoed the Bill, virtually ensuring that it will not become law.  The Governor did not issue a statement about his reasons for vetoing this Bill, but it is one of dozens of bills passed by the Democrat-controlled Legislature that he vetoed in the last few weeks.