Mixed Motive Case Provides Mixed Results for California Employers
Author: Beth P. Zoller, XpertHR Legal Editor
In Harris v. City of Santa Monica, +2013 Cal. LEXIS 941 (2013), the California Supreme Court considered a mixed motive discrimination case in which an employer had both lawful and unlawful reasons for terminating an employee. The court ruled that the employer may be held liable if the employee can show that discrimination was a substantial factor motivating an adverse employment action; however, damages may be limited if the employer demonstrates that it would have made the same decision absent the discrimination. In this case, bus driver Wynona Harris (Harris) claimed that the City of Santa Monica (City) violated California's Fair Employment and Housing Act (FEHA) when it terminated her six days after her supervisor learned she was pregnant. The City countered that it lawfully terminated Harris for poor job performance seven months after she was hired based on the fact that she had two accidents, was twice late to work and had been advised in her evaluation that she needed "further development."
At trial, the City asked the court to advise the jury that if it decided that the City had mixed motives - both a lawful reason (poor job performance) and an unlawful reason (a discriminatory motive) - for terminating Harris, the City could avoid liability by proving that it would have made the same decision to terminate her based solely on a lawful motive. The court refused to grant this jury instruction and instead instructed the jury that the City was liable if Harris proved that pregnancy discrimination was a motivating factor in her termination. The jury returned a sizeable verdict for Harris, consisting of $150,000 in emotional distress damages, $25,000 in lost wages and over $400,000 in attorney fees. An appeals court reversed and held that the City's requested instruction was proper.
The California Supreme Court held that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay or an order of reinstatement.
However, the employer does not completely escape liability - the employee may still be awarded damages in the form of declaratory relief (a declaration by the court that the employer engaged in unlawful discrimination), injunctive relief (a court order requiring the employer to refrain from future discrimination), as well as reasonable attorney fees and costs if appropriate. The court reasoned that such an instruction fulfills the FEHA's express purpose of redressing, preventing and deterring unlawful workplace discrimination and prohibits an employer from escaping liability altogether, but prevents an employee from receiving a windfall when the employer proves that it would have made the same decision for lawful reasons.
Advice for Employers
This decision comes as good news to California employers, especially because the state generally leans heavily in favor of expanding employee rights in the workplace.
It raises the bar for employees and requires them to show that discrimination was a substantial factor in an adverse employment action, and not just the motivating reason. Further, it substantially limits the damages employees may be entitled to in mixed motive cases by preventing them from obtaining emotional distress damages, back pay and reinstatement when the employer had a legitimate reason for terminating or disciplining an employee. If an employer can show that a negative employment action was taken for a legitimate reason, even if discrimination was a substantial factor, an employer can avoid damages and reinstatement. However, California employers should remember that they still may be on the hook for attorneys' fees and costs which could be quite substantial. As a result, employers should carefully consider the facts and circumstances and consult with counsel before terminating or disciplining employees.
Additionally, this ruling comes shortly after the US Supreme Court decided to hear the case of Univ. of Texas Southwestern Med. Ctr. v. Nassar, +2013 U.S. LEXIS 911 (U.S., Jan. 18, 2013), in which it will consider whether an employer can be held liable for retaliation (as opposed to discrimination) under Title VII under a mixed motive theory of liability even if it had a legitimate reason for making an adverse employment decision. Taken together, this suggests that mixed motive cases continue to be potentially problematic for employers because they may be held liable even when they have legitimate, nondiscriminatory reasons for taking an adverse employment action.
Additional Resources
Supreme Court to Hear 'Mixed Motive' Title VII Case
Employee Management > EEO - Discrimination
Employee Management >EEO - Discrimination: California
Employee Management > EEO - Retaliation