Court to rule on use of mixed-motive defense in discrimination cases

A case pending before the California Supreme Court could have a major impact on plaintiffs’ abilities to recover damages in  employment discrimination cases. The case, Harris v. City of Santa Monica, asks the court to decide whether employers may assert the “mixed-motive” affirmative defense to avoid liability in employment discrimination claims brought under the California Fair Employment and Housing Act.

Harris, the plaintiff in the case, was hired by the City of Santa Monica (“the City”) as a bus driver trainee. As a trainee Harris had one “preventable accident” but was still promoted to probationary part-time bus driver. During the probationary period, Harris had another “preventable accident” and a “miss-out” (a failure to timely notify a supervisor of an unplanned absence). For the “miss-out” Harris was penalized 25 demerit points and told that the accumulation of 50 or more demerit points in a rolling 90-day period may be grounds for termination. After three months of employment, Harris had her first performance review for which she received the rating “further development needed.” Following the performance review Harris had another “miss-out,” prompting the City to review her personnel file. After reviewing Harris’s personnel file, the City contends it made the decision at that time to terminate her employment; however, Harris was not notified of the City’s decision. More than a week later, when Harris notified her immediate supervisor that she was pregnant, she was still unaware of the City’s decision to terminate her, and wouldn’t become aware that her job was in jeopardy until she was fired two days later.

Harris sued the City alleging she was fired for being pregnant. Under the California Fair Employment and Housing Act (“FEHA”), firing an employee because she is pregnant is an unlawful, discriminatory employment practice. The City maintains that it had legitimate, non-discriminatory reasons for firing Harris such that she would have been fired even if she had not been pregnant or told her supervisor she was pregnant.

The City asked the court to instruct the jury in the “mixed-motive” affirmative defense, under which the jury is told if the employer had both discriminatory and non-discriminatory reasons for firing an employee, the employer should not be found liable provided the non-discriminatory reason(s) standing alone were sufficient to warrant dismissal. The court refused the City’s request and instead presented to the jury the “motivating factor” instruction, which is the preferred instruction in FEHA employment discrimination cases. The “motivating factor” instruction tells the jury to find the employer liable even if both discriminatory and non-discriminatory reasons existed if the discriminatory reason was a motivating factor in the employment decision.

The jury concluded that pregnancy was a motivating factor or reason for the City’s decision to terminate Harris and awarded her damages of $177,905. The City appealed, arguing the court made a mistake when it denied its request to present the “mixed-motive” affirmative defense to the jury.

Under the “motivating factor” test, it is more difficult for employers to escape liability for discriminatory employment practices because the existence of non-discriminatory reasons does not excuse the discriminatory practices. Conversely, under the “mixed-motive” affirmative defense test, employers who engage in discriminatory employment practices may avoid liability if they can show other, non-discriminatory reasons for their employment decision.

At present, the “motivating factor” or “motivating reason” instruction is the preferred jury instruction in FEHA employment discrimination cases in California, and the “mixed-motive” affirmative defense is not widely-accepted. According to employment law attorney Randall E. Strauss, of Gwilliam Ivary Chiosso Cavalli & Brewer, “[t]he ‘motivating reason’ jury instruction has been a vital weapon in the war against discrimination in California.” If the California Supreme Court takes that weapon away by ruling that the “mixed-motive” affirmative defense instruction can or should be used in FEHA employment discrimination cases, it will be more difficult for plaintiffs in employment discrimination cases to recover damages and combat employment discrimination.

Update: On Feb. 7, 2013, the California Supreme Court issued a unanimous decision in this case, finding that an employee must prove by a preponderance of evidence that discrimination was a “substantial factor” causing an employment decision.

Seek legal counsel

When faced with discriminatory employment practices, working closely with a lawyer who will explain clearly all rights, options and consequences can help to ensure that you make decisions that are in your interests. Contact an employment discrimination attorney today to schedule a consultation.