Yesterday, Justice Goodwin Liu, writing for a unanimous California Supreme Court, held that where unlawful discrimination is a substantial motivating factor in an adverse employment action, even if the employer also has a non-discriminatory reason for the employment action, the “employer does not escape liability.” Harris v. City of Santa Monica, S181004.
Within eight days of notifying her employer that she was pregnant, Ms. Harris was terminated from her position as a bus driver. Thereafter, she sued the City of Santa Monica for pregnancy discrimination under the Fair Employment and Housing Act (“FEHA”). The City of Santa Monica claimed that it had a legitimate non-discriminatory reason for terminating Ms. Harris also – namely, performance and attendance issues.
The jury was instructed to find for Ms. Harris if they determined that her pregnancy was a “motivating factor” in the City’s decision to terminate her. The jury found in favor of Ms. Harris and awarded her $177,905. The City of Santa Monica appealed the decision, based on, among other things, the trial court’s refusal to give the jury a mixed-motive instruction (BAJI No. 12.26).
The Court of Appeal agreed with the City of Santa Monica and determined that the refusal to give the “same-decision” instruction was prejudicial error. However, the Court of Appeal also recognized that there was substantial evidence to support the jury’s finding that Ms. Harris’ pregnancy was a motivating factor in the City’s decision to fire Ms. Harris. The Court of Appeal ordered a new trial and Ms. Harris petitioned the Supreme Court for review. The City asked the Supreme Court to adopt a standard of complete immunity for an employer that can show it would have made the same employment decision absent discrimination, relying upon the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 288.
In Price Waterhouse, the United States Supreme Court held that once a plaintiff shows that discrimination is a motivating factor in the employment decision, the burden shifts to the defendant to prove that it would have made the same decision in the absence of discrimination. Price Waterhouse created a “same-decision” defense, providing a defendant complete immunity to liability if the employer were to prove that it would have made the same employment decision, even in the absence of, in Ms. Harris’ case, her pregnancy. However, as the Harris court noted, the Civil Rights Restoration Act of 1991 negated the complete defense established in Price Waterhouse, codifying instead the rule that an employer’s showing it would have made the same decision absent discrimination limits the remedies available to a Title VII plaintiff, but does not provide a complete defense to liability.
Ultimately, the California Supreme Court returned for its answer to the language and purpose of FEHA, prohibiting discrimination “because of” pregnancy or other protected bases (Gov. Code §12940), and hoping to effect “what the Legislature said it sought to accomplish in enacting the FEHA.” In so doing, the Supreme Court stressed FEHA’s “goal of preventing and deterring unlawful discrimination” in rejecting the employer’s notion of a complete defense to a FEHA action where they prove a “same-decision” defense. Yet, the Supreme Court declined the employee’s request to impose a “clear and convincing” standard for proof of the “same-decision” defense – allowing employers to escape liability for backpay and other relief based upon a simple preponderance of the evidence that they would have acted the same without discrimination.
Summarizing, the Supreme Court concluded that “when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement.” Yet, the Court held that a prevailing plaintiff may still be entitled to declaratory or injunctive relief as well as attorney’s fees and costs, preventing a discriminating employer from escaping liability all together.
If you believe you have been subject to discrimination in your employment, contact Bryan Schwartz Law.
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