Executive Summary: According to a new California Supreme Court opinion, once an employee claiming discrimination demonstrates that a discriminatory reason for his or her termination substantially motivated anadverse employment decision, the employer is entitled to show that a legitimate, non-discriminatory reason would have led it to make the same decision. If the employer is able to demonstrate that, notwithstanding any discriminatory reason for the decision, it was actually motivated by a non-discriminatory reason, the employee is not entitled to monetary damages, back pay or reinstatement, but may still be entitled to an injunction or an award of attorneys' fees and costs.
The plaintiff, Wynona Harris, was employed as a bus driver. During the first few months of her employment, she had two "preventable" accidents and twice failed to report for her scheduled shift. Some time later, Harris informed her supervisor in passing that she was pregnant. According to Harris, her supervisor reacted negatively, stating, "Wow, what are you going to do? How far along are you?" A short time later, when Harris' name appeared on a list of probationary drivers who were not meeting expectations, her employment was terminated. Harris alleged she was terminated because of her pregnancy.
Even if Discrimination Contributed to the Decision, the City was Entitled to Argue it Would Have Terminated Harris Based on Legitimate Reasons
Harris was a"mixed motive" case, in which the parties argued a mix of discriminatory and legitimate reasons led to Harris' termination. The defendant, the City of Santa Monica, did not argue that Harris' termination was solely motivated by a non-discriminatory reason. Instead, the City argued the trial court wrongly instructed the jury that it was required to find that discrimination was "a motivating reason" for the termination, rather than the more exacting standard, that Harris' termination was "substantially motivated" by a discriminatory reason.
The California Supreme Court held that, even if Harris' termination was motivated by both discriminatory and non-discriminatory reasons, the City was entitled to present evidence that its legitimate reasons would have led it to make the same decision absent the discriminatory reason. Once an employee proves that discrimination based on a protected characteristic was a substantial factor for the adverse decision, the employer is entitled to show that: 1) it had legitimate reasons for the decision; 2) those reasons would have led to the same decision even if the discriminatory motive had not played a role; and 3) the employer was actually motivated by the legitimate reasons at the time it made the decision.
If the employer can prove all three, the employee is not entitled to monetary damages, back pay, or reinstatement, but may be entitled to an injunction, or attorneys' fees and costs. The Court explained that an adverse employment decision affected by discrimination is indicative of a discriminatory policy or practice by the employer, thus, an injunction is an appropriate remedy.
Employers' Bottom Line
While the Supreme Court heightened the burden of proof for employees claiming discrimination, whether the more exacting standard will result in fewer lawsuits alleging discrimination remains to be seen.
As before, employers should implement clear employment policies and apply these consistently when administering discipline or terminating employees. Employers are advised to seek employment counsel to evaluate and minimize risk when implementing adverse employment actions, especially terminations.
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I am pleased to share my latest post to the SHRM blog. In a stunning legal development, the NLRB issued on this morning, April 1, 2016, a public apology for gutting employer rules designed to increase civility and respect.
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