Friday, January 2, 2015
Harris and Mixed Motives in Discrimination Cases
The Supreme Court of California determined in Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the proper remedy permitted for a plaintiff in a discrimination employment case under the Fair Employment Housing Act (FEHA) where, although discrimination was a substantial factor in her termination, the employer proves that a same decision result would have been reached for non-discriminatory reasons. Here, Harris was hired as a bus driver trainee in October 2004 for the City of Santa Monica; she had a couple “preventable accidents”, resulting in two accidents, one during her probationary period, and one after. For her evaluation, she was designated as “needing further development.” She also had a “reliability problem” due to being tardy on two occasions, and a failure to notify supervisors in a timely manner. Then in 2005 she informed a superior that she was in fact pregnant. The supervisor showed concern and asked her to seek clearance from her doctor to remain working. The morning Harris gave him the doctor’s note, her superior attended a supervisors' meeting and received a list of probationary drivers who were not meeting standards for continued employment. Harris was on the list. Her last day on the job was May 18, 2005. After alleging that sexual discrimination, which includes pregnancy, was a factor in her termination, the defense denied and made the affirmative defense that it had legitimate, nondiscriminatory reasons to fire her as an at-will, probationary employee. But the court denied the defendant’s jury instructions: “If you find that the employer's action ... was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.” The trial court refused to provide such instruction, using instead the “motivating factor” test; which is determined by asking the jury to find for the plaintiff if proven by a preponderance of the evidence whether Harris’ pregnancy was a motivating factor in the her termination from employment. On appeal, the court reversed, finding that the jury instruction should have been permitted, and failure to amounted to prejudicial error. The Supreme Court agreed in part, but determined what remedial measures a plaintiff could still be awarded even in the mixed-motive analysis is determined in favor of an employer. A same-decision showing, in effect, is not a complete defense to liability if the plaintiff has proven that discrimination was still a substantial motive affecting her termination. Id. at 407. Thus the issue centered on remedies: “If a plaintiff has shown that discrimination was a substantial factor motivating a termination decision, but the employer has shown that it would have made the same decision in any event, what relief is available to the plaintiff?” Id. at 233. The court held, 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 also may be eligible for an award of reasonable attorney's fees and costs. As for the jury instructions, 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.