What is a jury to do when it finds that a mix of discriminatory and legitimate reasons motivated the employer’s decision to terminate an employee?  That is the question the California Supreme Court faced in Harris v. City of Santa Monica, decided earlier this month. In Harris, the California Supreme Court denied an award of damages, back pay, or order reinstatement for an employee claiming she was fired for discriminatory reasons where her employer showed that it would have terminated her for legitimate non-discriminatory reasons.  This, mixed motive defense has typically been unavailable for employers in California courts, which usually instructs juries that they may find in favor of an employee if they find discrimination was a “motivating factor” in the employment decision.

Ms. Harris, a bus driver for the City of Santa Monica, alleged she was fired because of her pregnancy in violation of the Fair Employment and Housing Act.  The City claimed she was fired for poor job performance.  Evidence presented at trial showed Ms. Harris had performance issues, including poor driving (she had an accident while driving which damages her bus and she sideswiped a parked car tearing off its mirror) and arriving late to work on multiple occasions without providing proper notice to her supervisor.  However, there was also evidence that Ms. Harris’ supervisor had reacted with displeasure when she informed him she was pregnant.  At trial, the City asked the court to instruct the jury that they could find in the employer’s favor if they found that the employment decision was motivated by both discriminatory and non-discriminatory reasons, and that there was a preponderance of evidence that the employer would have made the employment decision only based on the legitimate reason.  The court refused and instead instructed the jury that they could find in favor of Ms. Harris if she proved her pregnancy was a motivating factor for her discharge.  The jury eventually found in Ms. Harris’ favor.

The California Supreme Court determined that the trial court’s refusal to provide a jury instruction on the mixed-motive defense was wrong.  It held that if an employer, “in the absence of any discrimination, would have made the same decision at the time it made its actual decision” the employer has a defense to discrimination claims.  Employers must only establish a preponderance of evidence supporting this defense rather than clear and convincing evidence (a much higher standard).  If the employer provides the requisite proof, an employee is not entitled to damages, back pay, or an order of reinstatement.

While employers received some good news from the Harris decision, employers must understand that a mixed-motive defense is not a complete defense to liability.  According to Harris, an employee is still entitled to declaratory relief, injunctive relief, and attorneys’ fees if it shows that discrimination played a substantial factor in the employment decision.  Thus, employers still face significant risk in discrimination cases because they could potentially be liable for attorneys’ fees, which many times are far greater than any recovery by the employee.  Therefore, rather than attempt to rely on a mixed motive defense, the better practice for employers is to take steps to prevent potentially discriminatory events from occurring in the first place.  Employers should ensure their employment policies are up to date and comply with California law, that their management is properly trained in these policies and on how to respond to employees who are within a protected class, that they properly document employment performance and discipline for their employees, and that any employment decision is consistent with internal policies.  Given the ever changing landscape in California employment laws, employers should consider contacting experienced legal counsel to review and update their policies and to provide guidance regarding appropriate disciplinary actions available to an employer.

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