Weekly Law Resume: Plaintiff in FEHA Discrimination or Retaliation Claim Must Prove by Preponderance of the Evidence That Discrimination or Retaliation was a Substantial Motivating Reason for Adverse Employment Action

by Low, Ball & Lynch

Lorena Alamo v. Practice Management Information Corporation
California Court of Appeal, Second Appellate District (August 21, 2013)

Following the termination of her employment, Lorena Alamo (“Alamo”), a billing and collections clerk, filed a civil action against her former employer, Practice Management Information Corporation (“PMIC”), alleging in relevant part: (1) pregnancy discrimination and retaliation in violation of the California Fair Employment and Housing Act, Gov. Code §12900 et seq. (“FEHA”); and (2) wrongful termination in violation of public policy. The case was tried before a jury, which rendered a verdict in Alamo’s favor.

PMIC appealed the trial court decision, claiming that the trial court erroneously instructed the jury by requiring Alamo to show that her pregnancy or pregnancy-related leave was a “motivating reason” for her termination, rather than it being “a substantial motivating reason.” PMIC further argued that the trial court should have instructed the jury that PMIC could avoid liability under a “mixed motive” defense by demonstrating that it would have terminated Alamo even in the absence of any discriminatory or retaliatory motive.

The Court of Appeal affirmed the trial court decision, finding that the court had made no instructional error. Specifically, the Court of Appeal found that a plaintiff in a pregnancy discrimination action must only show that the plaintiff’s pregnancy was “a motivating reason” in the employer’s decision, and the “mixed motive” defense does not apply where the defendant denies that discrimination played any role in the claimed adverse employment action.

PMIC appealed the Court of Appeal’s decision. The California Supreme Court vacated the lower court’s decision and directed it to reconsider the case in light of its recent decision in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. Under the Court’s Harris ruling, a plaintiff must produce evidence sufficient to show by a preponderance of the evidence that discrimination was a “substantial” motivating factor, rather than simply a motivating factor, behind an employment decision. Harris also held that employers may rely on the “mixed motive” defense in employment discrimination cases by showing that legitimate, nondiscriminatory reasons would have led to the same decision at the time the decision was made.

The Court of Appeal for the Second District has now ruled that the proper standard of causation in a discrimination or retaliation claim under FEHA is “a substantial motivating reason” rather than “a motivating reason.” However, the Court disagreed with PMIC in regards to the mixed motive defense. It found that PMIC offered a defective “mixed motive” instruction to the jury because it did not plead the defense in its answer to Alamo’s complaint, nor did it assert it as an affirmative defense. The Court reversed the judgment and the award of attorneys’ fees in favor of Alamo and remanded the matter for retrial. On retrial, the trial court will instruct the jury on the standard of causation set forth in Harris, but PMIC will not be allowed to use the “mixed motive” defense.


In addition to affirming the adoption of “a substantial motivating reason” standard of causation in a discrimination or retaliation claim under FEHA, the Court of Appeals has also stressed the importance for employers to either include their “mixed motive” defense in their answer to a complaint or assert it as an affirmative defense that the employer had a lawful reason to discharge the employee. Otherwise, the employer will waive the defense.

For a copy of the complete decision see:


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Low, Ball & Lynch

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