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by D. Gregory Valenza | The Daily Journal | Feb 10, 2010

The plaintiff in an employment discrimination case must establish a link between the plaintiff’s protected classification (e.g., race, sex, etc.) and adverse action (e.g., discharge, demotion, etc.). The opinions construing the Fair Employment and Housing Act say the plaintiff merely must show that unlawful discrimination was “a motivating factor” behind the allegedly discriminatory decision. The burden is not onerous. “A motivating factor” means illegal discrimination was just one reason behind the decision, even if other motivating reasons were perfectly legal.

What if the employer can prove it would have fired the employee regardless of discrimination? For instance, if a manager uses a string of racial epithets while firing an employee, but the employer proves it fired 15 other employees of different races for the exact reason, is that a discriminatory — or legitimate — business decision? Courts classify such cases as “mixed motive.” If the employer proves by a preponderance of evidence that it would have made the same decision regardless of impermissible motivations, then the employer prevails on the basis of this affirmative defense.

The Court of Appeal in Harris v. Santa Monica ___ DJAR ___ (Feb. 4, 2010), applied the mixed-motive defense to a pregnancy discrimination claim brought under the Fair Employment and Housing Act. The city’s bus service hired Wynona Harris as a bus driver trainee in October 2004. Over the first couple of months of her employment, Harris had two preventable accidents, missed work without giving adequate notice, and received a rating of “further development needed.” In May 2005, Harris told her supervisor she was pregnant. Shortly thereafter, she was selected for layoff along with other part-time bus drivers not performing up to expectations.

Harris sued Santa Monica, claiming pregnancy discrimination. The city asked the court to instruct the jury on a “mixed motive” defense, based on the BAJI No. 12.26 form jury instruction: “If you find that the employer’s action . . . 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. . . . ”

The trial court refused to give the instruction. As a result, the jury was permitted to find pregnancy was one motivating factor behind the termination decision without considering Santa Monica’s argument that it would have fired her anyway. The jury awarded Harris $177,905 in damages, and $400,000 in attorney’s fees. The trial court denied all of Santa Monica’s post-trial motions.

The Court of Appeal reversed and ordered a new trial. The court expressly recognized that a mixed-motive defense exists in cases asserted under the Fair Employment and Housing Act. However, because the explanation of the reasons for discharge is not “new matter,” the defense is not waived if not pleaded in the answer.

The court also decided that the mixed-motive defense is a complete bar to liability under California’s Fair Employment and Housing Act. In contrast, under Title VII of the Civil Rights Act of 1964, the federal anti-discrimination law, mixed motive is a defense that affects the potential damages recoverable, but is not a defense to liability. Moreover, the U.S. Supreme Court in Gross v. FBL Fin. Servs., 559 U.S. ___ (2009), refused to apply the mixed-motive defense at all in cases brought under the federal Age Discrimination in Employment Act.

The court in Harris noted that the Fair Employment and Housing Act contains no similar limitations on using the defense. The court did not follow federal law in applying the defense.

Although the Court of Appeal held the trial court prejudiced Santa Monica by refusing a mixed motive instruction, the court ordered a new trial, rather than awarding judgment in favor of Santa Monica. The court observed Harris could have won her case based on the evidence introduced at trial. The jury would be free to reject Santa Monica’s proof that it would have fired her anyway. On remand, Santa Monica will introduce evidence of its policies and practices regarding termination. The jury will then decide if the city’s practices were applied sufficiently consistently to sustain the defense.

While perhaps not a guarantee of victory, the mixed motive instruction plainly would have helped Santa Monica at trial in the Harris case. In other cases, though, plaintiffs want to use the mixed-motive jury instruction to argue that the employer violated anti-discrimination laws. For example, in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the U.S. Supreme Court held plaintiffs are entitled to a “mixed motive” instruction without first introducing “direct evidence” of discrimination (such as racial slurs). The court lowered the bar at the plaintiff’s request. Presumably, the plaintiff argued the employer concededly relied on an illegal reason and sought only to reduce potential damages.

The mixed-motive defense is not employers’ only hope in discrimination cases. Employers also may prevail by introducing evidence that its legitimate, non-discriminatory reasons for its actions are truthful. Some courts are becoming less tolerant of employees’ efforts to second-guess the quality of a legitimate reasons. For example, the court in Harris observed: “Harris was an at-will employee. . . . The anti-discrimination provisions of the Fair Employment and Housing Act … do not ‘require the employer to have good cause for its [termination] decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.'” The court quoted this passage from Arteaga v. Brink’s, Inc., 163 Cal.App.4th 327, 344 (2008). In that case, the plaintiff argued the employer’s reasons were inadequate to overcome his disclosure of a disability and filing a workers’ compensation claim. The court held that the employer demonstrated it was critical of Arteaga’s performance long before he disclosed his alleged disability or claimed industrial injury.

Employers have viable means to prevail in discrimination claims brought under California law. As the Harris opinion shows, the mixed motive defense will give employers a chance to overcome a permissive causation standard favoring employees. The employer also may prevail by establishing a truthful, objectively plausible basis for discharge. Employers with strong policies of employment at will have another advantage, as the court recognized in Harris. To capitalize on these principles, employers also should ensure they apply disciplinary action as consistently as possible.

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