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United States: "Substantial" Benefit To Employers In California Supreme Court’s New Formulation Of Mixed-Motive Defense (Or, Ding Dong, The Wicked Witch Motivating Factor Instruction Is Dead)
Today in Harris v. City of Santa Monica, the California
Supreme Court, in a decision that favors employers, answered this
question: "What is the trier of fact to do when it finds that
a mix of discrimination and legitimate reasons motivated an
employer's decision to terminate employment?" Trial courts
and practitioners have long grappled with this question of how to
deal with a mixed-motive case. The answer: the trier of fact must
decide whether discrimination was a substantial factor in the
decision and if it was, whether the employer would have made the
same decision in the absence of any discriminatory views. If so,
because both discriminatory and legitimate considerations were at
play, the successful plaintiff may recover only injunctive or
declaratory relief and attorneys' fees. No other damages are
available.
The Harris decision does away with the troublesome and
difficult-to-overcome "motivating factor" instruction
found in CACI No. 2500 and previously applied in mixed-motive
cases.
BACKGROUND
The facts: Plaintiff Wynona Harris, a probationary driver for
the city-owned Big Blue Bus Company of Santa Monica, was in two
preventable traffic accidents while driving her city bus and was
twice late to work. Her performance review rating was "further
development needed," but also had the notation "Keep up
the Great Job!" A short time after her second tardy, Harris
told her supervisor that she was pregnant and he was seemingly
displeased by the news. A few days later, Harris was
terminated.
The trial court: Harris sued the city of Santa Monica for
pregnancy discrimination. The trial court was asked by the city to
give a mixed-motive instruction to the effect that if the city
would have reached the same decision without the discriminatory
rationale, there was no liability. Instead, the court gave CACI No.
2500, which instructed that if discrimination was a motivating
factor in an employment decision there was liability. The term
"motivating" factor was defined as "something that
moves the will and induces action even though other matters may
have contributed to the taking of the action." The jury found
that the Harris pregnancy was a motivating factor in the decision
to terminate her employment and ruled 9-3 in her favor.
The Court of Appeal: The intermediate appellate court remanded
for a retrial after determining that the trial court should have
used the city's mixed-motive instruction. The court found that
the mixed-motive defense, permitted in federal employment
discrimination cases under Title VII, was good law and could be
used by employers in FEHA cases.
THE DECISION
In a six-member unanimous decision authored by Justice Liu, the
Court considered how best to weigh mixed motives present in a case
in which both legitimate and discriminatory factors contributed to
the decision. In other words, what caused the decision to terminate
the employment? Rejecting proposals from all the litigants, the
Court went its own way by accepting the substantial factor test as
the measure of whether the discriminatory motive caused the
termination and the "same decision" standard as a
limitation, not on liability, but on damages.
IMPLICATIONS
Finally, there is a clear standard for liability in a
mixed-motive case. Importantly, defendant employers will no longer
have to toil under the problematic motivating factor instruction.
The fact that in such cases the plaintiff will not be entitled to
actual damages if the same decision defense is sustained has
practical and strategic implications we will have to see play
out.
To view the Court's decision, click
here.
Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
situations.
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