Employment Law Client Alert: California Supreme Court Limits Employee Damage Recovery in Mixed-Motive Cases

In Harris v. City of Santa Monica, No. S181004, filed February 7, 2013 (Harris), the California Supreme Court held that a plaintiff employee cannot recover damages, backpay, or an order of reinstatement where the employer establishes the “mixed-motive” defense. In other words, where a jury finds unlawful discrimination was a substantial motivating factor in a challenged adverse employment action, and the employer proves it would have made the same decision absent such discrimination, the jury cannot award damages, backpay, or reinstatement.

The plaintiff in Harris was hired to be a Santa Monica bus driver in October 2004. Her employment was subject to a probationary period. During the period of her probation, she was involved in two preventable accidents. Her March 2005 performance review indicated she needed further development. By April 2005, she had two “miss-out” occurrences, meaning she did not advise her supervisor that she would be tardy or absent for a shift. She advised her supervisor of her pregnancy on May 12, 2005. Four days later, her supervisor was given a list of drivers that were not meeting standards for continued employment. Harris was on the list and she was terminated May 18, 2005.

At trial, the court refused to give a “mixed-motive” motive instruction. The requested instruction would have allowed the jury to find “[t]he employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason [for terminating the employee], standing alone, would have induced it to make the same decision.” The jury subsequently found Harris’s pregnancy was “a motivating factor/reason for [her] discharge” and awarded $300,000.00 in damages.

The Court of Appeal affirmed the decision of the trial court. The California Supreme Court reversed, concluding (1) the jury should have been instructed that the discriminatory conduct was a substantial motivating factor and (2) the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time. The Court further held that if the employer establishes by a preponderance of the evidence a “same-decision” defense, the defense precludes damages, backpay, and reinstatement. The Court qualified the scope of the defense, however, providing that it is not a complete defense to liability. The plaintiff may be entitled to declaratory relief or an injunction where appropriate. Moreover, the plaintiff would also still be entitled to reasonable attorney fees under Labor Code section 12965, subdivision (a).

As California employers know too well, attorney fees drives these types of cases. Therefore, the Harris decision is welcome news to employers as it narrows the remedies available to a plaintiff where the jury finds the “mixed-motive” defense applies.

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February 13, 2013