California Supreme Court Decides Mixed-Motive Discrimination Case

On February 7, 2013, the California Supreme Court decided Harris v. City of Santa Monica, a mixed-motive discrimination case, bringing California in line with federal law.  The case is important to California employers and practitioners because up to now, California has been walking in the dark when it comes to the mixed-motive defense.

A mixed-motive defense can occur when an employer has a legitimate business reason for taking adverse employment action against an employee, but the adverse action is also motivated by some discriminatory conduct, feelings or animus.  There is no true single reason for the employer’s action.  But in deciding Harris, the court, even though it mirrored federal law, refrained from providing guidance on important evidentiary issues raised by mixed-motive cases which will result in trial and appellate courts inevitably having various interpretations of the court’s decision.  Ultimately, these issues will circle right back to the court to deal with again at some later date.

In Harris, the court held that under California’s Fair Employment and Housing Act (FEHA), “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, back pay or an order of reinstatement. But the employer does not escape liability.  In light of the FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory or injunctive relief to stop discriminatory practices.  In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.

There are several important practice tips from this decision.  First, the court found that the mixed-motive defense is available only when there is “proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.”  This is in line with current federal decisions and authorities.  Second, the court held that an employer need only prove the same-decision showing by a preponderance of the evidence as opposed to the more strict clear and convincing standard.

Third, the court held that if the mixed-motive defense is available, it does not act as a complete bar 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.”  However, this is where the court’s train leaves the rails.  In holding that a plaintiff must show that the discrimination was a “substantial factor motivating” for the adverse employment action, the court then stated: “[g]iven the wide range of scenarios in which mixed-motive cases might arise, we refrain from opining in the abstract on what evidence might be sufficient to show that discrimination was a substantial factor motivating a particular employment decision.”

As a consequence, plaintiffs and defendants will be left to grapple with proving or disproving mixed-motive cases with evidence between “motivating factor” and “substantial motivating factor” without clear guidance from the court as to the sufficiency of the proof, or what conduct may be only motivating, but not substantially motivating.

Fourth, as to the issue of remedies, the court again ruled in conformance with federal authorities.  Any award giving a plaintiff a right to reinstatement or damages for economic losses or emotional distress would result in a unjustified windfall for the plaintiff.  However, the court also found that an employer’s “same-decision showing does not make a finding of unlawful discrimination an empty gesture.”  Here, the court held that declaratory and injunctive relief would be available.  Also, the court held that when a plaintiff has “proven unlawful discrimination, a plaintiff may be eligible for ‘reasonable attorney’s fees and costs.’”

However, as most defendants experience, attorney’s fees are often the tail wagging the dog in discrimination cases.  Even though this ruling brings California in line with federal law, it will in no way act as a deterrent to the filing of frivolous cases as long as the court refrains from providing clear guidance on the evidentiary issues, and as the specter of attorney’s fees hangs over an employer’s head.

Employers’ Take Away:  Prior to taking any adverse employment action against an employee, thoroughly review the reasons and motivations for such action.  Be sure you are in the position to be able to document and support any adverse employment action.  Seek guidance when necessary and bring counsel in early to evaluate any potential issues.

For more information on this issue or assistance with applicable workplace policies and procedures, contact Lou Klein at

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