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United States: California Supreme Court Holds That Proof That Employer Would Have Made Same Employment Decision Absent Discrimination Precludes Award Of Damages, Backpay, Or Reinstatement
On February 7, 2013, the California Supreme Court held that
where a plaintiff proves that unlawful discrimination in violation
of the Fair Employment and Housing Act ("FEHA") was a
substantial factor motivating her termination, but the employer
proves that it would have made the same employment decision absent
such discrimination, the plaintiff may obtain only declaratory or
injunctive relief and attorneys' fees and costs, but may not
recover damages, backpay, or reinstatement.
In Harris v. City of Santa Monica, the plaintiff, a former bus
driver employed at-will by the City of Santa of Monica ("the
City"), sued for sex discrimination in violation of FEHA after
she was discharged on the same day that she submitted a
doctor's note confirming her pregnancy. The City claimed that
the plaintiff was discharged for her poor job performance and
failure to meet its standards for continued employment, given that,
during her seven-month employment, she was involved in two
preventable accidents, incurred two unexcused absences, and was
evaluated as needing "further development."
At trial, the court refused to instruct the jury that if it
found a mix of discriminatory and legitimate motives, the City
could avoid liability by proving that a legitimate motive alone
would have led it to make the same decision to terminate the
plaintiff. The Court of Appeal reversed, finding prejudicial error
in refusing to provide the legally correct instruction. The
California Supreme Court affirmed in part.
The California Supreme Court agreed with Justice
O'Connor's concurring opinion in Hopkins v. Price
Waterhouse that "the plaintiff must produce evidence
sufficient to show that an illegitimate criterion was a substantial
factor in the particular employment decision." The Court
reasoned: "Requiring the plaintiff to show that discrimination
was a substantial motivating factor, rather than simply a
motivating factor, more effectively ensures that liability will not
be imposed based on evidence of mere thoughts or passing statements
unrelated to the disputed employment decision."
Where a plaintiff has shown by a preponderance of the evidence
that discrimination was a substantial factor motivating her
termination, the employer is entitled to demonstrate that
legitimate, nondiscriminatory reasons would have led it to make the
same decision at the same time. Proof that the employer, in the
absence of any discrimination, would have made the same decision
precludes an award of damages, backpay, or reinstatement to the
plaintiff. A terminated employee should not be put in a better
position than she would have occupied had the discrimination not
occurred.
This same-decision showing, however, is not a complete defense
to liability under FEHA. When the plaintiff has proven that
discrimination on the basis of a protected characteristic was a
substantial factor in motivating the adverse employment action,
declaratory or injunctive relief, along with attorneys' fees
and costs, may still be available to plaintiff in light of the
FEHA's express purpose of preventing and deterring unlawful
discrimination in the workplace.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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