The following is a guest blog post by Jeffrey Osofsky, an attorney at Munger, Tolles & Olson LLP in Los Angeles with a practice focusing on defending employers and individual managers against employment-based lawsuits. Mr. Osofsky wishes to thank Munger Tolles Partner Terry Sanchez for his assistance with this post.
California’s Fair Employment and Housing Act generally prohibits employers from basing their employment decisions on certain protected characteristics (race, sex, pregnancy, etc.). But what happens when an employer sued for discrimination can show that, despite any unlawful consideration, it would have reached the same decision about that employee anyway?
The California Supreme Court recently addressed this “would have made the same decision anyway” question in Harris v City of Santa Monica. The case involved a bus driver who was terminated after she crashed her bus during her probationary period and struggled with attendance issues. Before her termination, the plaintiff had confided in a supervisor that she was pregnant; she later claimed she was unlawfully terminated based on her pregnancy.
The City maintained that she was fired for poor job performance and asked the trial court to provide a “mixed-motives” instruction that would allow the jury to decide whether, irrespective of any invidious motivation, a lawful basis alone would have led to the discharge. The trial court refused the request, and the jury returned a verdict for the plaintiff.
The case made its way to the California Supreme Court, where a new standard was born: when a plaintiff shows discrimination was “a substantial motivating factor” in an adverse employment action, but the employer demonstrates it would have taken the same action even absent such discrimination, the court cannot award the plaintiff damages, backpay, or reinstatement. The employer, however, is not entirely immune from liability, as the employee may still be entitled to declaratory relief, injunctive relief, and/or attorney fees and costs. In the supreme court’s view, limiting available remedies in this way avoids an “unjustified windfall” to plaintiffs while still adequately deterring future discrimination.
Under Harris, an after-the-fact justification for the employee’s termination will not establish the same-decision defense. Rather, a same-decision showing requires proof that a legitimate, non-discriminatory reason
- actually motivated the employer at the time it made its actual decision, and
- standing alone, absent any discrimination, would have led to the same result.
Overall, Harris is a victory for employers in mixed-motives cases. It raises the plaintiff’s initial burden by requiring a showing that discrimination was, in the court’s words, a “substantial motivating factor, rather than simply a motivating factor” (although the court expressly declined to opine on the evidence required to meet that standard). And even if the plaintiff meets this burden, an employer can still significantly limit available remedies by showing that lawful considerations would have produced the same result.
Harris also makes clear that an employer does not risk conceding liability when it requests a mixed-motives instruction.
Here are the takeaway, practical points for both sides:
- Employees: plaintiffs can no longer win damages simply by showing that discrimination was a mere “motivating factor” irrespective of any other reason, so employees should give serious consideration to their ability to establish causation before bringing suit.
- Employers: Harris serves as a good reminder of the importance of carefully documenting the employer’s reason for taking an adverse job action. After all, if the employee makes out a prima facie case, it is the employer’s burden to establish the same-decision defense.
Related CEB blog posts:
- What Insurance Won’t Cover: Discrimination in Workers’ Compensation Cases
- Recessionary Discrimination
- Is Weight Discrimination the Next Legal Frontier?
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