California Supreme Court Splits the Baby in Mixed-Motive Employment Discrimination Case

In Wynona Harris v. City of Santa Monica, decided on February 7, 2013, the California Supreme Court addressed the following question:

In an employment discrimination case where an employer terminates an employee both for discriminatory and legitimate reasons, what showing is required for liability to attach to the employer, and what remedies are available?

In Wynona, a terminated bus driver sued the City, her employer, alleging that her termination was motivated by her pregnancy. Discrimination on the basis of pregnancy is prohibited under the Fair Employment and Housing Act (FEHA).

At trial, the City claimed that she had been fired for poor job performance, and asked the Court 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 would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a verdict for the employee. The Court of Appeal reversed, holding that the requested instruction was legally correct and the refusal to give it was prejudicial error.

The Supreme Court held that the Court of Appeal was correct in part, reasoning as follows.

The Test For Employment Discrimination In Cases That Do Not Involve Mixed Motives

As the Court explained, in FEHA employment discrimination cases that do not involve mixed motives, California has adopted a three-stage burden-shifting test.  Under this test, the Plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. The burden then shifts to the employer to rebut the presumption by producing evidence that its action was for a legitimate, nondiscriminatory reason. The burden then shifts back to the employee to show that the employer’s proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion remains with the plaintiff.

The Test For Employment Discrimination In Cases That Involve A Mix Of Discriminatory And Legitimate Reasons

However, in cases involving a mix of discriminatory and legitimate reasons motivating the employer’s decision, the test is necessarily different.

After carefully reviewing case law, the legislative history, and federal employment discrimination precedent, the Court ruled as follows:

• 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.
• If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement
• However, where appropriate, the plaintiff may be entitled to declaratory or injunctive relief. The plaintiff may also be eligible for an award of reasonable attorney’s fees and costs under Labor Code, section 12965(b).
• Consequently, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer’s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages.
• Mere discriminatory thoughts or stray remarks are not sufficient to establish liability under FEHA. There must be evidence, either direct or circumstantial, sufficient to show that an illegitimate criterion was a substantial factor in a particular employment decision.

The City’s failure to plead the same-decision defense affirmatively in its answer was not a bar to such defense. Although normally it is the defendant’s burden to plead such an affirmative defense, Plaintiff was on notice from other statements in the answer that the City intended to defend on the basis that it had not discriminated against Plaintiff and had a legitimate reason for discharging her.

Comment: The decision represents some baby-splitting on the part of the Supreme Court. While denying the Plaintiff the ability to obtain damages in same-decision cases, the law still carries a potential sting in the form of declaration, injunction, and especially attorney fees. In other words, where an illicit discriminatory motive forms a basis for the adverse employment decision — or where such a motive seems to form the basis for such a decision — an employer can still be subject to substantial exposure.

Please contact the author, Michael Newman, if you would like to discuss the issues addressed in this article.