California Supreme Court Issues Mixed Decision in Mixed-Motive FEHA Employment Discrimination Case

by Holland & Knight LLP

The California Supreme Court's recent decision in a closely watched Fair Employment and Housing Act (FEHA) case should be of interest to employers around the country, even though — or perhaps because — it does not provide an outright win for either employers or employees.

The court unanimously held that under the FEHA, where a jury finds that unlawful discrimination was a "substantial motivating factor" in an adverse employment action in a mixed-motive case, and where the employer proves it would have made the same decision absent such discrimination for legitimate reasons, a court may not award damages, back pay or an order of reinstatement. The employer does not escape liability, however. In light of the FEHA's express purpose of "not only redressing but also preventing and deterring unlawful discrimination in the workplace," an FEHA plaintiff may still be awarded "declaratory relief or injunctive relief to stop discriminatory practices" and reasonable attorneys' fees and costs. Harris v. City of Santa Monica, No. S181004 (February 7, 2013), 2013 WL 4522959.

Although the ruling establishes a framework for mixed-motive defense and liability in employment discrimination cases under the FEHA, more litigation that tests this framework is likely.


In October 2004, the City of Santa Monica ("City") hired Wynona Harris as a bus driver trainee. During her 40-day training period, Harris had a "preventable" accident, during which the glass on the bus's back door was cracked. After she completed her training, Harris was promoted to probationary driver, an at-will employee. During a probationary period, Harris had a second preventable accident.

In addition to the accidents, Harris reported late to work and received her first of two "miss-out" incidents — a failure to give her supervisor at least one hour's warning that she would not be reporting for her assigned shift. The City's guidelines indicated that most drivers get one or two late reports or miss-outs a year, but more suggested that a driver had a "reliability problem." A miss-out resulted in 25 demerit points and the guidelines indicate that probationary employees were allowed only 50 demerit points.

In March 2005, Harris's her overall performance rating from her supervisor was "further development needed." That April, Harris incurred a second "miss-out," which prompted a management review of her complete personnel file. Members of management determined that Harris was not meeting the City's standards for continued employment.

That May, during a chance encounter, Harris told her supervisor she was pregnant. He reacted with seeming displeasure at her news, exclaiming: "Wow. Well, what are you going to do? How far along are you?" He then asked her to get a doctor's note clearing her to continue to work. Four days later, Harris provided a doctor's note permitting her to work with some limited restrictions. That same morning, her supervisor attended a supervisors' meeting and received a list of probationary drivers who were not meeting standards for continued employment. Harris was on the list, and her last day on the job was two days later.

Harris sued the City under the FEHA, alleging sex discrimination on the basis of her pregnancy. The City denied her allegations and asserted as an affirmative defense that it had nondiscriminatory reasons to fire her as an at-will, probationary employee. The jury awarded Harris $177,905 in damages, including $150,000 for mental suffering. The trial court also awarded Harris $401,187 in attorneys' fees.

The Appeal: Jury Instruction and Proper Standard of Liability

The City appealed to the Court of Appeal arguing that the trial court's refusal to give Book of Approved Jury Instructions (BAJI) No. 12.26, which pertained to its mixed-motive defense, prejudiced its defense. That instruction states in part: "If you find that the employer's action, which is the subject of plaintiff's claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision."

The premise of this defense is that a legitimate reason was present and, standing alone, would have induced the employer to make the same decision. Instead of this instruction, the trial court gave California Civil Jury Instruction (CACI) No. 2500, which states that Harris merely had to prove that her pregnancy was a "motivating factor/reason for the discharge." "Motivating factor" was further defined according to BAJI No. 12.01.1 as "something that moves the will and induces action even though other matters may have contributed to the taking of the action."

The Court of Appeal concluded that the requested jury instruction based on BAJI No. 12.26 was an accurate statement of California law and that the refusal to give the instruction was prejudicial error. Given this finding, the Court of Appeal remanded for a new trial. Thereafter, the California Supreme Court granted Harris's petition for review to decide whether the BAJI No. 12.26 mixed-motive instruction was correct.

California Supreme Court Announces "Substantial Motivating Factor" Test

The California Supreme Court began its analysis by parsing the relevant part of the FEHA, California Government Code section 12940(a) ("Section 12940(a)"), which prohibits an employer from taking an employment action against a person "because of" the person's race, sex, disability, sexual orientation or other protected characteristic. The parties agreed the phrase "because of" means there must be a causal link between the employer's consideration of a protected characteristic and the adverse action taken by the employer. But what was disputed was the kind or degree of causation required.

As the California Supreme Court noted, there are at least three plausible meanings of the phrase "because of" in Section 12940(a): "(1) discrimination was the 'but for' cause of the employment decision, (2) discrimination was a 'substantial factor' in the decision, and (3) discrimination was simply 'a motivating factor.'" The Harris court also noted that each of the three interpretations was supported by some authority and, unfortunately, the FEHA's legislative history did not clarify the kind or degree of causation the FEHA requires.

Faced with this ambiguity, the court turned to federal anti-discrimination law for guidance. It first analyzed the famous Title VII mixed-motive case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, the U.S. Supreme Court rejected the view that a Title VII plaintiff has the burden of proving "but for" causation. Instead, the high court held that once the plaintiff shows that discrimination was a motivating factor, the burden shifts to the defendant to negate "but for" causation by proving that it would have made the same decision at the time even without the discrimination. But as the California Supreme Court noted, Congress quickly superseded the Price Waterhouse holding by amending Title VII in the Civil Rights Restoration Act of 1991. The 1991 amendment to Title VII codified the rule that an employer's "same-decision" showing limits the remedies available to a Title VII plaintiff but does not provide a complete defense to liability. If the employer makes such a showing, a federal court can grant declaratory relief, injunctive relief and attorneys' fees and costs but neither damages nor an order requiring any admission, reinstatement, hiring, promotion or payment.The California Supreme Court also analyzed several other high court decisions to explain that the 1991 congressional amendment was intended to clarify but not change what Congress believed to be the meaning of "because of" in Title VII.

The court then noted that no California appellate decision had squarely decided the mixed-motive issue under the FEHA. Because the FEHA's legislative history was also silent on the matter, the court focused on the FEHA's dual purposes: compensating victims of discrimination and preventing and deterring unlawful discrimination. In seeking to promote and harmonize thee purposes, the court ultimately concluded that a same-decision showing by an employer "is not a complete defense to liability when the plaintiff has proven that discrimination on the basis of a protected characteristic was a substantial factor motivating the adverse employment action." It was careful to require that an FEHA plaintiff show that discrimination was "a substantial motivating factor, rather than simply a motivating factor" to ensure that "liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision."

Addressing a second broad issue, and having set the "substantial motivating factor" test for liability, the court turned to the issue of remedies. After analyzing the proper balance for promoting the FEHA's public purpose of deterring future discrimination while preventing a windfall to an FEHA plaintiff who would have been terminated for legitimate reasons anyway, the court adopted the same remedial scheme as found under Title VII, as amended in 1991. Thus, proof that an adverse employment action was substantially motivated by discrimination may warrant a judicial declaration of employer wrongdoing, injunctive relief to stop discriminatory practices and "reasonable attorneys' fees and costs." The Harris court cautioned that such an attorneys' fee award must take into account the scale of the plaintiff's success and it must not encourage "unnecessary litigation of claims that serve no public purpose either because they have no broad public impact or because they are factually or legally weak."

Finally, the court rejected Harris's argument that the employer must prove its same-decision defense by "clear and convincing" evidence as opposed to a preponderance of the evidence. It also rejected Harris's argument that the City's failure to plead separately a mixed-motive defense in its answer required the mixed-motive jury instruction to be refused. Rather, is was enough that the City had pleaded that any adverse employment actions were "based on one or more legitimate nondiscriminatory reasons." This statement supported giving a mixed-motive jury instruction because it gave Harris notice that "the City intended to defend on the basis that it had not discriminated against her and had a legitimate reason for discharging her."

Practical Implications

The Harris court'sadoption of the "substantial motivating factor" standard as that governing mixed-motive cases under the FEHA is a mixed result for employers. On the one hand, it is more exacting than the easily-met "motivating factor" test allowed by the trial court in Harris. On the other hand, it is not nearly as difficult a burden as the "but for" causation test that the City had argued for.

Consequently, employers are cautioned that simply having a legitimate reason for an adverse employment action will not suffice to prevent liability if a discriminatory reason for the adverse decision arguably exists.

Also, the remedial scheme adopted by the Harris Court makes clear that while a "same-decision" showing may preclude an award of reinstatement, back pay or damages, it will not preclude all liability. Judicial declarations, prospective injunctive relief, and attorneys' fees and costs are still available as remedies, even in the wake of a successful showing of a same decision by the employer predicated upon legitimate grounds. In such a situation, the most damaging penalty may be the attorneys' fees and costs awarded. What remains to be seen is how trial courts applying Harris will set the amount of such fees and costs. The Harris court emphasized that the touchstone for such an award is "reasonableness." But what this translates into remains an open question.

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.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.