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When California FEHA plaintiff shows unlawful bias was substantial factor in termination, mixed motive defense, if proven, will preclude damages, but employer may not completely escape liability

February 18th, 2013  |  Cynthia L. Hackerott

Under California’s Fair Employment and Housing Act (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, backpay, or an order of reinstatement, ruled a unanimous California Supreme Court, with Justice Marvin R. Baxter having recused himself from the case. (Harris v City of Santa Monica, February 7, 2013, 96 EPD ¶44749).  However, a same-decision showing does not allow an employer to completely escape liability. Where such a showing is made, plaintiffs may still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and costs.

A bus driver alleged that she was fired by the City of Santa Monica because of her pregnancy in violation of the prohibition on sex discrimination in the FEHA. The city claimed that she had been fired for poor job performance. The trial court gave the jury an instruction which required the jury to determine whether discrimination was “a motivating factor/reason” for the bus driver’s termination. The city asked the court 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 fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee. A California Court of Appeal reversed, holding that the requested instruction was an accurate statement of California law and that refusal to give it was prejudicial error.

The state supreme court affirmed the portion of court of appeal‘s judgment that overturned the damages verdict, but the supreme court, after clarifying the appropriate standard of proof for the mixed motive/same decision defense, ruled that a same-decision showing does not allow an employer to completely escape liability.

Meaning of “because of” in FEHA. The FEHA 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 phrase “because of” means there must be a causal link between the employer‘s consideration of a protected characteristic and the action taken by the employer, the court explained. However, the court noted that the kind or degree of causation that is required by the “because of” language is unclear. Faced with this textual ambiguity, the court looked to the legislative history of the statute, but its review uncovered nothing that cast light on the kind or degree of causation required.

Therefore, the court looked to Title VII law prior to, and as amended by the Civil Rights Restoration Act of 1991 (including Price Waterhouse). Yet, it found no help there, either, noting that the definition of “because of” in federal antidiscrimination law (including the U.S. Supreme Court’s ADEA decision in Gross) contained both temporal and cross-statutory variation. Thus, the California Supreme Court found it must ultimately focus its attention on what the state legislature said it sought to accomplish in enacting the FEHA.

Same decision defense. In light of the FEHA’s purposes, especially its goal of preventing and deterring unlawful discrimination, the court concluded that 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. However, while a same-decision defense is permitted under the FEHA, such a 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.

Standard of proof. The employee argued that if any type of same-decision showing were to be permitted, the court should hold the employer to a higher standard of proof – by requiring clear and convincing evidence rather than a preponderance of the evidence. But the court disagreed, pointing out that it has not applied a heightened proof standard to cases with ordinary civil remedies, and it was not aware of any mixed-motive case since Price Waterhouse and the 1991 amendments to Title VII (which also declined to adopt a clear and convincing evidence standard) that has applied anything but a preponderance of the evidence to an employer‘s same-decision showing. Thus, because employment discrimination litigation does not resemble the kind of cases in the California Supreme Court has applied the clear and convincing standard, it held that preponderance of the evidence is the standard of proof applicable to an employer‘s same-decision showing.

Remedies. The court next held that, if the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, the plaintiff cannot be awarded damages, backpay, or an order of reinstatement. However, it would tend to defeat the preventive and deterrent purposes of the FEHA to hold that a same-decision showing entirely absolves an employer of liability when its employment decision was substantially motivated by discrimination. Thus, in light of the FEHA‘s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff, following a same-decision showing by the employer, could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and costs.

Same decision instruction in this case. The bus driver contended that even if the court concluded that a jury should receive some type of same-decision instruction in cases potentially involving mixed motives, the instruction should not have been given in her case because the same-decision showing was an affirmative defense that the city did not plead in its answer to her complaint. However, the court held that the city‘s failure to plead this defense did not bar such an instruction. The city’s pleading in its answer, that any alleged adverse employment action was not based on discriminatory practice, but rather on one or more legitimate nondiscriminatory reasons was sufficient to put the bus driver on 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. Further, the city‘s defense at trial was consistent with that intention. Thus, the fact that the city did not plead a same-decision defense did not adversely affect the bus driver’s substantial rights, and the omission did not bar the trial court from giving a same-decision instruction.

Remand instructions. Finally, the court stated that in light of its decision, a jury in a FEHA 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. In this case, the state supreme court instructed the trial court on remand to determine, in the event of a retrial, whether the evidence of discrimination in the bus driver’s case warranted a mixed motive instruction.