Fenwick Employment Brief - February 2013

Author:Mr Dan McCoy and Saundra L.M. Riley
Profession:Fenwick & West LLP


Cal Supreme Court Refuses To Immunize Employers In Mixed-Motive Discrimination Cases, But Significantly Limits Remedies

Resolving a question that has been pending for three years, in Harris v. City of Santa Monica, the California Supreme Court held that, in mixed-motive cases, where an illicit purpose is a substantial motivating factor for an adverse employment action, the employer will be liable for unlawful discrimination but, if it shows that it would have made the same decision absent the illicit motive, the plaintiff's remedies will be limited.

In Harris, plaintiff Wynona Harris, a bus driver for the City, sued her former employer for pregnancy discrimination when it fired her less than a week after she disclosed her pregnancy to her supervisor. She testified at trial that her supervisor, George Reynoso, reacted with "seeming displeasure" to the information.

The City denied the allegation, claiming it fired Harris for legitimate business reasons. The City showed that, during Harris' six months of employment as a bus driver, she had two preventable accidents and twice arrived to work late without adequate advance notice (a "miss-out"). Per City policy, such conduct justified termination. Following an investigation into the second miss-out, in early May 2005, the transit services manager, Bob Ayer, recommended the miss-out remain in Harris' file and, at the assistant director's request, he examined Harris' complete personnel file. Ayer reported to the assistant direct that Harris "was not meeting the [City's] standards for continued employment..."

On May 12, 2005, Harris had a "chance encounter" with her supervisor. In response to Reynoso's instruction to tuck in her uniform shirt, Harris informed him that she was pregnant. On May 16, 2005, Harris provided Reynoso a doctor's note permitting her to work with restrictions. That same day, Reynoso received a list of drivers who were not meeting standards for continued employment, which included Harris. Harris' last day of employment was May 18, 2005.

At trial, the City asked the court to instruct the jury that, if the termination was actually motivated by both discriminatory and legitimate reasons, the City would not be liable if it established that it would have made the decision based solely on the legitimate reason. The court refused, instead instructing the jury that the City was liable if the discriminatory reason was a motivating factor for the termination. The jury found, in a 9-to-3 vote, for Harris, awarding nearly $178K in damages and over $400K in attorneys' fees.

The City appealed, alleging the jury instruction misstated the law. The appellate court reversed and the California Supreme Court agreed to review the case. Relying largely on the policies underlying the California Fair Employment and Housing Act, the supreme court took a middle-of-the-road approach:

A plaintiff must first show that the illicit purpose, if not a "but for" cause, was a "substantial motivating factor" in the challenged action. This "more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision" while recognizing liability for the employer even if other factors would have led to the same decision at the time. An employer relying on a same-decision...

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