California Court Says in Mixed-Motive Cases Bias Must Be Substantial Factor in Job Action
A Santa Monica, Calif., city bus driver cannot keep the $177,905 in damages she was awarded after a jury found she was fired because of her pregnancy, because evidence of the city’s mixed motives meant she should have been required to show that her pregnancy was a substantial rather than just a motivating factor in the decision, the California Supreme Court held Feb. 7 (Harris v. Santa Monica, Cal., No. S181004, 2/7/13).
Because the jury was not instructed on the substantial factor standard or the city’s “same-decision” defense, an intermediate appeals court properly vacated the judgment in favor of Wynona Harris, the supreme court ruled.
But it rejected the notion that evidence of Harris’s poor performance provided the city with a complete defense to Harris’s claims under California’s Fair Employment and Practices Act. The court recognized the statute’s “express purpose of not only redressing” the harm to the plaintiff, “but also preventing and deterring unlawful discrimination in the workplace” more broadly.
Although a plaintiff may not recover damages or back pay or be reinstated when faced with proof that the employer still would have discharged the plaintiff for a valid reason regardless of any impermissible bias, declaratory or injunctive relief may be available to end the employer’s discriminatory practices, the California Supreme Court said.
Although a plaintiff may not recover damages or back pay or be reinstated when faced with proof that the employer still would have discharged the plaintiff for a valid reason regardless of any impermissible bias, declaratory or injunctive relief may be available to end the employer’s discriminatory practices, the court said.
“We believe that allowing a same-decision showing to immunize the employer from liability … would tend to defeat the purposes of the FEHA,” Justice Goodwin Liu wrote. “FEHA does not envision that individuals and the general public must tolerate discriminatory treatment in employment decisionmaking until it finally costs someone a job or promotion.”
In addition, in appropriate cases a FEHA plaintiff may recover reasonable attorneys’ fees and costs as the prevailing party, the supreme court ruled. It said “requiring an employer to absorb the costs of litigation for which its own wrongdoing is substantially responsible furthers the FEHA’s goal of preventing and deterring unlawful employment practices.”
Fired After Disclosing Pregnancy
The decision affirms in part an appeals court ruling that overturned the jury’s verdict on grounds of instructional error. Although the appeals court was correct to overturn the verdict, it went too far in its definition of the mixed-motive defense, Liu said.
The appeals court held that the jury should have been told that evidence the city was motivated by mixed factors in terminating Harris would entitle the city to a complete defense. In addition to $177,905 in economic and noneconomic damages, the trial court had awarded Harris $410,187 in attorneys’ fees and costs.
Harris sued after being discharged on the same day she submitted a note from her doctor stating that she could continue working during her pregnancy, with limited restrictions. She submitted the note at the behest of her supervisor, after informing him of her pregnancy four days earlier.
Harris had been with city-owned Big Blue Bus for approximately seven months and was still a probationary employee when she was terminated. During that time, she was involved in two “preventable” accidents, including one during training. She also had been late for work on two occasions.
According to the city, she was fired after her supervisor received a list of probationary drivers who were not meeting the city’s standards for continued employment.
At trial, the city requested that the jury be charged on the same-decision defense, but the trial court declined and instead instructed the jury on a “motivating factor” standard.
Following the appeals court’s reversal, the supreme court granted Harris’s petition for review.
Meaning of ‘Because of’ Analyzed
Liu said the first issue was whether the same-decision defense allows an employer to completely escape liability, as the city argued and the appeals court ruled. He was unpersuaded.
Observing that FEHA, California Government Code Section 12940, grounds liability on discrimination “because of” a protected trait, the supreme court found three possible meanings of that phrase: proof that bias was the “but-for” cause, a “substantial factor,” or a “motivating factor” in the challenged employment decision. Liu found that the legislative history of FEHA was of no help in uncovering Section 12940′s “textual ambiguity.”
State courts often look to Title VII of the 1964 Civil Rights Act for guidance when interpreting similar state statutes, Liu said. He noted that under Title VII, as amended by the Civil Rights Act of 1991, mixed-motive evidence does not provide a complete defense to liability for discrimination. Instead, such evidence limits the available remedies to declaratory and injunctive relief and the plaintiff’s attorneys’ fees and costs.
But federal law does not provide much insight into the meaning of “because of” in Section 12940 beyond the finding that the purpose of Title VII and the purpose of FEHA “are aligned,” the court decided. Recounting the history of the development of the mixed-motive standard under Title VII, the court found too much “temporal and cross-statutory variation” to draw expressly on the federal statute in interpreting FEHA.
Liu also pointed out that, “unlike the post-1991 version of Title VII, [FEHA] does not expressly define the phrase ‘because of.’ ”
Intent to Deter Deemed Key
The court instead found guidance in interpreting “because of” under FEHA in its stated purposes, which are to redress the harms of discrimination experienced by aggrieved persons individually, and to prevent and deter future violations of the statute to protect workers more broadly. It is the second purpose that still can be served in mixed-motive cases, the court held.
“In light of the FEHA’s purposes, especially its goal of preventing and deterring unlawful discrimination, we conclude that a same-decision showing by an employer is not a complete defense to liability when the plaintiff has proven that discrimination on the basis of a protected characteristic was a substantial factor motivating the adverse employment action,” Liu wrote.
“When discrimination has been shown to be a substantial factor motivating an employment action, a declaration of its illegality serves to prevent that discriminatory practice from becoming a ‘but for’ cause of some other employment action going forward,” the court stressed. “An uneven playing field tends to discourage people from entering the competition,” so it still is important to end an employer’s discriminatory practice even if the plaintiff may not collect damages, Liu said.
The court also ruled that:
- Direct evidence is not required in mixed-motive cases under FEHA.
- A preponderance of the evidence standard applies, not the higher “clear and convincing evidence” standard called for by Harris.
- The city did not waive the same-decision defense by failing to plead it in response to Harris’s complaint.
- To prevail in a mixed-motive case, a plaintiff must show that discrimination was a substantial factor in the employer’s decision.
“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,” Liu said.
“At the same time, … proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time,” Liu said.
Here, because the jury was not instructed on the substantial factor standard, reversal is required, the court affirmed. It directed the trial court on remand to determine whether the evidence warrants a mixed motive instruction.
Chief Justice Tani Gorre Cantil-Sakauye and Justices Joyce L. Kennard, Kathryn Mickle Werdegar, Ming W. Chin, and Carol A. Corrigan joined the opinion. Justice Marvin R. Baxter did not participate in the case.
David M. deRubertis, Michael H. Leb, and Kimberly Y. Higgins of deRubertis Law Firm in Studio City, Calif., Michael Nourmand of Los Angeles, and Norman Pine and Beverly T. Pine of Pine & Pine in Sherman Oaks, Calif., represented Harris. Marsha J. Moutrie, Joseph Lawrence, Barbara C. Greenstein, Carol Ann Rohr, Jeanette Schachtner, Anthony P. Serritella, and Meishya Yang of the city attorney’s office represented Santa Monica.
By Patrick Dorrian
Text of the opinion is available at http://about.bloomberglaw.com/blaw2/files/2013/02/harris-cal.-sup-1.pdf.