“Substantial” Benefit to Employers in California Supreme Court’s New Formulation of Mixed-Motive Defense (or, Ding Dong, the Wicked Witch Motivating Factor Instruction Is Dead)

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Today in Harris v. City of Santa Monica, the California Supreme Court, in a decision that favors employers, answered this question: “What is the trier of fact to do when it finds that a mix of discrimination and legitimate reasons motivated an employer’s decision to terminate employment?” Trial courts and practitioners have long grappled with this question of how to deal with a mixed-motive case. The answer: the trier of fact must decide whether discrimination was a substantial factor in the decision and if it was, whether the employer would have made the same decision in the absence of any discriminatory views. If so, because both discriminatory and legitimate considerations were at play, the successful plaintiff may recover only injunctive or declaratory relief and attorneys’ fees. No other damages are available.

The Harris decision does away with the troublesome and difficult-to-overcome “motivating factor” instruction found in CACI No. 2500 and previously applied in mixed-motive cases.

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