Ruling In Harris v. City Of Santa Monica Raises Bar For Employees To Prove Discrimination Under FEHA

On February 7, 2013, the California Supreme Court issued a much-anticipated decision that significantly impacts the ability of employees to prove their employment discrimination claims and recover damages under the California Fair Employment and Housing Act (“FEHA”).  In Harris v. City of Santa Monica (Los Angeles County Superior Court, Case No. BC341469), a bus driver alleged the City of Santa Monica (the “City”) fired her because of her pregnancy in violation of FEHA.  At trial, the court refused to instruct the jury that if it found a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to terminate her employment.  This is commonly referred to as the “mixed-motive defense.”  Instead, the court instructed the jury according to California Civil Jury Instructions (“CACI”) No. 2500, which provided that the employee only had to prove that her pregnancy was “a” motivating factor/reason for the discharge.  The jury ultimately issued a verdict in favor of the employee, and the City appealed the judgment.

Based upon prior Court of Appeal cases and federal law interpreting Title VII claims, the Court of Appeal agreed with the City and held that the requested instruction was legally correct and the refusal to allow the City to rely upon the mixed-motive defense was prejudicial error.  The California Supreme Court granted the employee’s petition for review.

The Supreme Court issued a unanimous decision holding that, under FEHA, a plaintiff must produce evidence sufficient to show by a preponderance of evidence that discrimination was a “substantial factor” motivating an employment decision.  The Supreme Court selected this higher causation standard because it believed that requiring a plaintiff to show that discrimination was a “substantial” motivating factor, rather than simply “a” motivating factor, more effectively ensures that liability will not be imposed based on mere thoughts or passing statements unrelated to the disputed employment decision.

The Supreme Court further held that employers may rely upon the mixed-motive defense in employment discrimination cases.  As such, when a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time.  The Supreme Court cautioned that an employer may not prevail in a mixed-motive case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.  Additionally, an employer does not meet its burden by showing that at the time of the decision it was motived only in part by a legitimate reason.  The essential premise of this defense is that a legitimate reason was present, and standing alone, would have induced the employer to make the same decision.

Finally, while the Supreme Court held the mixed-motive defense bars the court from awarding damages, backpay, or an order of reinstatement, the mixed-motive defense does not absolve employers of all liability.  Rather, the employee may be entitled to declaratory or injunctive relief to stop discriminatory practices if a jury finds that unlawful discrimination was a “substantial factor” motivating the employment decision.  In addition, the plaintiff may be eligible for reasonable attorneys’ fees and costs.  Although the Supreme Court stated that courts could take into account the scale of the employee’s success in determining the amount of the attorneys’ fees award, trial courts also have broad discretion in awarding attorneys’ fees under FEHA.  Accordingly, attorneys’ fees will continue to pose a significant risk for employers in mixed-motive discrimination cases.

Why is the Harris decision important for employers? 

In employment discrimination cases, it is not uncommon for employees to rely upon weak circumstantial evidence such as isolated remarks by managers or employees to support their discrimination claims.  Typically, the employee is unable to produce any direct evidence of discrimination, and these remarks are not connected with the employment decision or are remote in time.  Nevertheless, even if employers were able to present evidence substantiating its legitimate reasons for the employment decision, there was a significant risk that employees would still prevail at trial because they only had to show that a protected characteristic, such as the employee’s age or gender, was “a” motivating factor for the employment decision.  While it remains to be seen how the Harris decision will play out in future employment discrimination cases, whether it be at trial or during settlement negotiations, Harris will make it more difficult for employees to rely upon this type of evidence to prevail in employment discrimination cases as it increases the burden for employees to prove discrimination under FEHA.  And, although it does not provide a complete defense or eliminate the risk of attorneys’ fees, employers may now rely upon the mixed-motive defense to substantially limit an employee’s recovery, even if it is found that discrimination substantially motivated an employment decision.

 

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