The California Supreme Court Provides Mixed Result in Mixed Motive Terminations

In Harris v. City of Santa Monica, (2013) 56 Cal.4th 203, the California Supreme Court provided long-awaited clarification of the standards that apply when an employer terminates an employee for “mixed motives”—that is, when the reasons for termination include a prohibited discriminatory motive under California’s Fair Employment and Housing Act (FEHA) as well as a legitimate motive that would have resulted in termination on its own.  The clarified standard provides gems both for employers and employees in mixed motive cases.  Harris safeguards employers from reinstating the employee, compensating them with back and front pay, and paying emotional distress damages to an employee whom the employer would have terminated in any event.  However, in a boon to employees (and their attorneys) Harris allows employees to recover their attorneys’ fees and costs of pursuing the discrimination claim and to obtain a finding of discriminatory intent and injunctive relief to ensure that the employer discontinues the improper conduct.

The facts.  Plaintiff Harris was a bus driver for the City of Santa Monica.  Harris claimed that Santa Monica violated FEHA by terminating her because she was pregnant.  Harris presented evidence at trial that just before her termination she had informed her supervisor that she was pregnant.  The City of Santa Monica claimed that it fired her for legitimate reasons.  It presented evidence that plaintiff had two “preventable” accidents and two “miss-outs” where she did not call in advance of failing to show up at work.  Santa Monica claimed these incidents and Harris’ performance reviews were legitimate, nondiscriminatory reasons to fire plaintiff.

Santa Monica asked for a jury instruction (BAJI No. 12.26) that exculpated the employer from liability if the jury found that the employer was motivated by both discriminatory and nondiscriminatory reasons, and that the employer would have made the same decision based on the legitimate reason standing alone (the “same-decision” standard).  The trial court refused, and gave an instruction that if plaintiff proved her pregnancy was a “motivating factor” for the termination the employer was liable (the “motivating factor” standard).  The jury returned a verdict for $177,905 including $150,000 for emotional distress.

The Court’s analysis.  The Court noted that the three-step process set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (https://bulk.resource.org/courts.gov/c/US/460/460.US.711.81-1044.html) applies to non mixed motive cases.  Under that process, if the employee makes a prima facie showing of discrimination it creates a presumption of discrimination.  The employer then must rebut the presumption by showing that it took the action for legitimate, nondiscriminatory reasons.  Then the employee must show that the supposed nondiscriminatory reason was actually just a pretext for discrimination.  The problem is that this test does not work in a mixed motive case where there are two or more “true” motives for the termination where at least one is discriminatory and the other nondiscriminatory.  So the Court had to analyze a question of first impression: what are the burden and standard for mixed motive cases?

The Harris court began its review with the statutory language, which provides that it is unlawful for an employer to make an employment decision “because of” an employee’s race, religious creed, etc.  The Court noted that “because of” could mean that the discriminatory motive was a necessary part of the decision, that the employer would not have taken the action but for the discriminatory motive.  But it could also mean that the discriminatory motive was a “substantial factor” in the decision.  And finally, it could also mean that the discriminatory motive was simply a “motivating factor.”  Thus, the Court determined, the language is ambiguous.  The Court could find no legislative history to assist in the interpretation.

The Court turned to the interpretation of Title VII and the interpretation of the “because of” language in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268  (https://bulk.resource.org/courts.gov/c/US/490/490.US.228.87-1167.html), since “California courts look to pertinent federal precedent when applying our own statutes.”  The Court noted that the Supreme Court adopted a two-step process in Price Waterhouse and adopted a “same decision” standard.  Thus, an employee was obligated first to show that discriminatory reason was a “motivating factor” in the decision; the employer then has the burden of showing that it would have made the same decision even absent the discriminatory reason.

The Court noted that Congress amended Title VII to codify that when an employer satisfies the “same decision” standard the court can still grant declaratory and injunctive relief and award attorneys’ fees and costs but not reinstatement or payment for past or future wages.  42 U.S.C. § 2000e–5(g)(2)(B).

Then the Court returned to the interpretation of FEHA.  The Court asked, in light of FEHA’s purpose to protect and safeguard the right and opportunity of all persons to seek employment free of discrimination, what should be the consequences of a same decision showing by an employer.  The Court emphasized that an employer had to show that it would have made the same decision “at the time it made its actual decision.”  In other words, employers could not use after-acquired evidence or information to try to satisfy the same-decision standard.

First, the Court determined that a same-decision showing does not provide a complete defense.  Citing FEHA’s purpose to prevent and deter unlawful employment practices, the Court found that allowing an employer a complete defense would defeat the preventative and deterrent purposes of FEHA.

That left the issue of what remedies should be available in the same-decision case.  The Court declined to allow the employee reinstatement or any compensatory damages.  Since the employer would have taken the employment action even without the discriminatory reason, the employee should not receive a “windfall.”

However, the courts may still grant declaratory and injunctive relief and award reasonable attorneys’ fees and costs to the employee.  Allowing declaratory relief could vindicate the employee among her coworkers and the community.  Allowing injunctive relief would preclude future improper conduct.  And allowing an award of attorneys’ fees and costs is fair because the employee could not know at the outset what the employer would prove about legitimate reasons to terminate her.  The Court felt that this result struck a good balance between the employer’s right to not be forced to employ someone it had legitimate reasons to fire and FEHA’s goal of preventing discrimination in the workplace.

Topics:  Discrimination, FEHA, Hiring & Firing, Mixed Motive Cases, Pregnancy Discrimination, Termination

Published In: Civil Procedure Updates, Civil Remedies Updates, Civil Rights Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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