On February 7, 2013 the California Supreme Court, in a unanimous
decision, affirmed that backpay and reinstatement are not available
remedies for a plaintiff under the Fair Employment and Housing Act
("FEHA") when an employer has proved by a preponderance
of evidence that it would have made the same decision to terminate
that individual for lawful reasons. The legal impact of the
much-anticipated decision is far reaching. Wynona Harris
v. City of Santa Monica.
Harris, a bus driver, alleged she was terminated because of her
pregnancy. The City claimed Harris was fired for job
performance. Specifically, within the first five months of
her employment, Harris was involved in two preventable accidents,
reported late to work twice and had been evaluated as needing
At trial, the City requested a mixed-motive defense jury
instruction be read to the jury. The essential premise of this
defense is that there was a legitimate reason for the termination
and, standing alone, this legitimate reason would have caused the
employer to make the same decision. The Superior Court refused to
give the instruction and ultimately the jury awarded Harris
$177,905 in damages, of which $150,000 were for non-economic
On appeal, the Court of Appeal determined the requested jury
instruction was an accurate account of California law and that it
was prejudicial error for the Superior Court to refuse to give the
instruction. On the other hand, Court of Appeal also
determined there was substantial evidence supporting the jury's
verdict that Harris had been terminated because of her
The Supreme Court held the Court of Appeal was correct in
part. The Supreme Court summarized its holding as
"In sum, we construe section 12940(a) as follows: When a
plaintiff has shown by a preponderance of evidence that
discrimination was a substantial factor motivating his or her
termination, the employer is entitled to demonstrate that
legitimate, nondiscriminatory reasons would have led it to make the
same decision at the time. If the employer proves by a
preponderance of evidence that it would have made the same decision
for lawful reasons, then the plaintiff cannot be awarded damages,
backpay or an order of restatement. However, where
appropriate, the plaintiff may be entitled to declaratory or
injunctive relief [and] ... may be eligible for an award of
reasonable attorneys' fees and costs ..."
The Supreme Court emphasized that in a mixed motive case,
although an employee may not be able to recover damages, FEHA's
purpose of redressing, preventing or deterring discrimination is
still being served because a plaintiff is eligible to seek
reasonable attorneys' fees and costs.
The impact of this decision is favorable to employers as it may
be a useful tool in cutting down some, if not all, damages in
certain FEHA claims. However, because the decision will not
prevent an employee from seeking reasonable attorneys' fees and
costs, it is still important for employers to continue to develop
strategies and preventive measures by conferring with legal counsel
when deciding to terminate employees.
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A female employee traveling for her employer met a "friend" and at her motel room with him became "injured whilst engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her."