Last month, the California Supreme Court heard oral arguments in a case that will clarify the standard of proof required for “mixed-motive” discrimination claims under the California Fair Housing and Employment Act (“FEHA”). Harris v. City of Santa Monica, No. S181004 (Cal. Dec. 4, 2012). In mixed-motive cases, both legitimate and illegitimate factors may have contributed to the employment action.
In Harris, Wynona Harris, a bus driver trainee for the City of Santa Monica, caused two accidents and missed work without notice during her 90-day probationary period. Harris’ supervisor gave her a “further development needed” performance review for her first 90 days. Harris had another unexcused absence after receiving the review. Based on the two accidents, two absences, and poor performance review, management concluded Harris was not meeting City performance standards. About a week later, Harris told her supervisor she was pregnant. Shortly thereafter, Harris was terminated.
Harris sued the City for pregnancy discrimination in violation of FEHA, and the case went to trial. The trial court rejected the City’s request for a “mixed-motive” jury instruction that even if the City 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.” Instead, the trial court gave a “motivating factor” instruction, under which the City could be liable for discrimination so long as the pregnancy was a “motivating factor” in its decision. The jury returned a verdict for Harris.
The City appealed on the grounds that the failure to give the mixed-motive instruction was prejudicial, and the Court of Appeal reversed the verdict and ordered a new trial. Along the way, the Court of Appeal determined that if the employer could prove Harris would have been fired for the non-discriminatory reasons, then it would be entitled to a defense verdict notwithstanding that discriminatory reasons were also at play. This contrasts with the standard in mixed-motive cases in federal courts, where a mixed motive only limits the damages but is not a defense to liability.
The California Supreme Court granted review to consider what standard—the mixed-motive standard, the motivating factor standard, or some other standard—applies to mixed-motive discrimination claims under the FEHA. At oral argument, the Court, in particular Justice Goodwin Liu, appeared inclined to adopt a standard akin to the federal standard, under which an employee must show discrimination was a “substantial factor” in the decision. Several justices also sounded poised to hold that, like federal law, a mixed-motive defense will limit the available remedies but not eliminate liability. Also noteworthy, on January 15, 2013, Justice Marvin Baxter recused himself from the case, likely due to a pregnancy discrimination lawsuit recently filed against his daughter. We will be keeping a close watch for the Court’s opinion, which is expected to be issued by March 4, 2013.