Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Alayna Schroeder | The Daily Recorder | Mar 5, 2013

The plaintiff in a civil lawsuit has to prove his or her case by a “preponderance” of the evidence. That standard means the fact finder (often a jury) believes it is more likely than not that the plaintiff was wronged. In discrimination cases under the Fair Employment and Housing Act, the plaintiff has to prove it is more likely than not that an illegal reason was the employer’s motivation for taking negative action (e.g., discharge). What if some evidence shows the employer acted for lawful reasons, but there is also evidence of an illegal motive? Can the employer be held liable if there is 50.1% likelihood that one illegal reason existed, even though there was evidence the employer would have taken action regardless? In Harris v. City of Santa Monica, the California Supreme Court decided these issues surrounding the plaintiff’s and defendant’s burdens of proof in so-called “mixed motive” cases.

Multiple Motivations for Firing

The City of Santa Monica hired Wynona Harris as a bus driver. Early in her employment, Harris had two minor traffic accidents and absences that did not comply with City policy.

The City determined Harris was not meeting expectations, and planned to fire her. Before the City could take action, Harris told her supervisor she was pregnant. He reacted with “seeming displeasure” and requested a note clearing her to work. Shortly thereafter, the City fired Harris. She filed a lawsuit, claiming she was fired because she was pregnant.

At trial, the City asked the court to instruct the jury that if it proved it would have made the same decision regardless of the evidence Harris presented of her supervisor’s discriminatory motive, it would not be liable. But the trial court instructed the jury that the City would be liable if pregnancy merely was a “motivating factor” in the termination decision. The jury sided with Harris and awarded her damages. The appellate court reversed the trial court’s ruling on the jury instruction, and the Supreme Court agreed to hear the case.

The Plaintiff’s Burden to Establish “Causation”

The California Supreme Court analyzed what the Fair Employment and Housing Act (FEHA) means when it prohibits employers to discriminate “because of” an employee’s pregnancy. The City argued that “because of” means the employer’s negative treatment of the employee would not have happened “but for” illegal discrimination. Harris contended that because the statute does not say the action must be exclusively because of discrimination, the plaintiff has to prove only that discrimination was one factor motivating the decision, even if there were lawful reasons as well.

The Court chose a middle ground, citing the legislature’s purposes for enacting the FEHA: to provide “effective remedies” to plaintiffs, and to prevent and deter unlawful conduct. The Court decided a plaintiff prevails by showing the discriminatory reason is a “substantial” motivating factor in an employment decision.

The Court was careful to point out that the law does not prohibit “discrimination in the air.” Discriminatory thoughts or “stray remarks” not connected to the decision making do not amount to illegal discrimination (although they may give rise to a harassment claim). In other words, even if Harris’s supervisor had discriminatory thoughts or beliefs, if those thoughts did not affect the City’s decision to terminate her, the City would not be liable.

Limitations on Available Remedies in Mixed Motive Cases

Again applying the FEHA’s purposes, the Court also decided the employer may prove that it would have made the same decision for nondiscriminatory reasons even if there is evidence of discrimination. In such a case, the Court ruled that the plaintiff’s remedies are limited to declaratory relief (a court finding of discrimination), injunctive relief (such as a court order requiring an employer to cease a discriminatory practice), as well as costs of suit and attorney’s fees.

The Court reasoned that if an employer is entirely relieved of liability, it has little motivation to prevent and deter discriminatory conduct. On the other hand, if a plaintiff is able to recover damages even if the employer would have made the same decision, the plaintiff stands to gain a windfall. Awards of lost wages and back pay to an employee whose performance warranted termination would result in payment of wages to which the employee would not have been entitled. Compensatory damages (such as for emotional distress) should not be available, the Court reasoned, because a plaintiff’s emotional distress from termination is likely primarily a result of the termination itself. Allowing an employee to recover emotional distress damages would compensate the plaintiff for harm he or she would have suffered even absent the discrimination.

The Court also noted that awards of attorney’s fees are discretionary, and depend in part on “the scale of the plaintiff’s success,” so as not to encourage “unnecessary litigation.” The Court’s rationale permits discretionary awards that help ensure plaintiffs with meritorious complaints are not dissuaded from bringing them, without encouraging meritless lawsuits.

Lessons for Employers

The Harris case offers limits on liability in cases where employers legitimately take action against employees, even where there is some evidence of discriminatory intent. The City may have been able to avoid the trouble of a lawsuit if it had taken action to address Harris’s performance shortcomings immediately. The City also would have prevailed had its supervisor reacted appropriately to Harris’ news of her pregnancy. Employers must set expectations regarding supervisor conduct via strong anti-discrimination policies and training.

Finally, employment litigators involved in in mixed motive cases should evaluate whether to make early offers of compromise to thwart the potential for attorneys’ fees awards in zero dollar value mixed-motive cases.