Harris v. City of Santa Monica has been pending before the California Supreme Court since 2011. On December 4, 2012, the Supreme Court held oral arguments, and issued its long-awaited opinion on February 7, 2013. The issue pending before the Supreme Court was whether giving a mixed-motive jury instruction under California’s Fair Employment and Housing Act (“FEHA”) at the trial court level was correct. The California Supreme Court has held that under FEHA, where an employee shows that discrimination was a “substantial motivating factor” for an employment decision, and when an employer is able to prove, by a preponderance of the evidence, that it would have made the same decision anyway, damages, backpay, and reinstatement cannot be awarded, but the employee may be entitled to injunctive or declaratory relief and/or reasonable attorney’s fees and costs.
In October 2004, the City of Santa Monica (“City”) hired Wynona Harris (“Harris”) as a bus driver trainee. In November 2004 Harris was promoted to probationary part-time bus driver, on an at-will basis, even after having had a preventable accident as a trainee. After her promotion, Harris had yet another preventable bus driving accident, where she sideswiped a parked car and tore off its side mirror. In addition to these accidents, on February 18, 2005, Harris reported late to work and failed to give her supervisor at least one hour’s notice that she would not be reporting for her assigned shift.
On March 1, 2005, Harris' supervisor gave her a three-month written performance evaluation with a "further development needed" rating. Harris testified at trial that her supervisor told her she was doing a good job and would have received a “demonstrates quality performance” rating had she not had her November accident.
On April 27, 2005, Harris, again, failed to give her supervisor at least one hour’s notice that she would not be reporting for her assigned shift.
On May 12, 2005, Harris had an unplanned discussion with her supervisor at the start of a shift. The supervisor told Harris to tuck her uniform shirt into her pants. In response, Harris confided to her supervisor that she was pregnant. According to Harris, her supervisor was not pleased, and he said: "Wow. Well, what are you going to do? How far along are you?" The supervisor asked Harris to bring in a doctor’s note clearing her to continue to work. On May 16, 2005, Harris gave her supervisor a doctor’s note clearing her to work with some limited work restrictions.
On May 16, 2005, the morning the supervisor got Harris’ doctor’s note, he attended a supervisors’ meeting and received a list of probationary drivers who were not meeting employment standards. Harris was on this list. On May 18, 2005, the City notified Harris of her termination from probationary, at-will employment.
Harris subsequently sued the City, alleging she was terminated for being pregnant, a form of sex discrimination. At trial, the City's defense was that it had legitimate, nondiscriminatory reasons for terminating Harris (i.e., poor work performance).
During the trial, the City asked the court to give the jury a mixed-motive defense jury instruction (i.e., BAJI No. 12.26, which instructs that an employer is not liable for discrimination even if discriminatory and non-discriminatory reasons exist for an employment action if the evidence shows that a legitimate business reason was the reason for taking the action), but the court gave a different jury instruction instead (i.e., CACI No. 2500, the instruction read that City was liable if Harris’ pregnancy “was a motivating reason/factor for the discharge.” “Motivating factor” was defined as “something that moves the will and induces action even though other matters may have contributed to the taking of the action.” The instruction failed to instruct the jury to consider whether Harris would have been terminated “but for” being pregnant, and failed to instruct the jurors to assess whether there were reasons that would have led to Harris losing her job regardless of being pregnant.).
A mixed-motive defense is based on the premise that liability should not exist where a legitimate reason was present, and standing alone, would have resulted in the employer taking the same adverse employment action. The effect of having the jury instructed on CACI No. 2500 instead of BAJI No. 12.26 was that plaintiff Harris only had to prove that her pregnancy was “a motivating factor/reason for the discharge” from employment. Plus, City did not have the opportunity to prove that it would have taken the same employment action against Harris anyway. By special verdict, the jury found by a vote of 9-3 that Harris’ pregnancy was a motivating reason for the City’s decision to terminate her. Harris was awarded economic damages and non-economic damages (including mental suffering) by the jury, and the court awarded her attorney’s fees too.
The City appealed to the Second District Court of Appeal. The City’s position on appeal was that Harris had a lower burden of proof than required by law, and the jury was not properly instructed to consider the legitimate business reasons posited by the City as a complete defense for terminating Harris. City maintained that it had the right to have the jury instructed on all defenses supported by the evidence introduced at trial or contained in the pleadings. The Second District Court of Appeal held that the City’s requested mixed-motive defense jury instruction, based on BAJI 12.26, was an accurate statement of the law, and failure to give the instruction resulted in prejudicial error by the trial court.
In response, Harris filed a petition for review with the California Supreme Court. The issue before the state supreme court is whether BAJI No. 12.26’s mixed-motive defense instruction is a correct statement of the law.
In a unanimous opinion, the California Supreme Court begins its analysis by considering the meaning of the phrase “because of” as used in section 12940(a) of the FEHA, where an employer is prohibited from taking an employment action against an employee “because of” membership in a protected class. The court looks at the plain meaning of the words “because of,” and to case law to try and resolve the meaning of the phrase. The court concludes that textual ambiguity exists, as it finds that there are three possible meanings as the phrase is used in section 12940(a): 1) discrimination was a “but for” cause of the employment action, 2) discrimination was a “substantial factor” in the employment action, and 3) discrimination was merely a “motivating factor” in the employment action.
The court then states that FEHA’s legislative history does not resolve the question of the meaning of “because of” as it is used in section 12940(a). In light of the ambiguity, the court focuses its attention to the United States Supreme Court’s judicial interpretation of the phrase “because of” as it is used in Title VII. After a review of precedent evaluating the meaning of “because of” as it is used in Title VII, and in light of the passage of a civil rights law in 1991 that defined the phrase “because of” as used in Title VII, the state supreme court concludes that the history of Title VII shows that there has not been one meaning of the phrase “because of,” but it has had different meanings at different times over the years.
The California Supreme Court also notes that FEHA, unlike the 1991 version of Title VII, does not provide a definition of “because of,” and thus the court must give effect to the Legislature’s purposes in enacting FEHA. In evaluating the Legislature’s purposes in enacting FEHA, and the court’s prior opinions interpreting the FEHA, the California Supreme Court concludes that there is a right to seek and hold employment that is free of prejudice, and that sex discrimination violates public policy. The court states that there is a “fundamental public interest in a workplace free from the pernicious influence of sexism. So long as it exists, we are all demeaned.”
With this backdrop, the California Supreme Court then turns its attention to whether there is a complete defense to liability where an employer can show that the same employment decision would have been made even after an employee has shown that an adverse employment action was motivated, at least in part, by discrimination. Plus, the court states that if it is not a complete defense, then it must determine whether any relief may be awarded to an employee where the employer shows that it would have taken the same action anyway.
The court holds that in light of FEHA’s purposes of preventing and deterring unlawful discrimination, there is no complete defense to liability for an employer who shows that the same employment decision would have been made after an employee has proven that discrimination on the basis of membership in a protected class was a “substantial motivating factor” for the employment decision. The court stresses that mere discriminatory thoughts or stray remarks are insufficient to establish liability under FEHA, but that a finding that an employer is absolved of any liability where it can show that the same decision would have been made when the employment action was “substantially motivated by discrimination” defeats the goals and purposes of FEHA. The court reasons that requiring an employee to show that discrimination was a “substantial motivating factor,” as opposed to “a motivating factor,” guarantees that liability will not be imposed under circumstances where there is only evidence of mere thoughts or passing remarks unrelated to the employment action at issue.
The court expressly refuses to opine on what evidence might be sufficient to show that discrimination was a substantial motivating factor for an employment decision. The court reasons that there is a wide range of potential scenarios where the mixed-motive defense may arise, and thus, refrains from providing an opinion on the type of evidence needed to establish substantial motivating factor.
The attention of the court is then turned to what type of remedies are available to an employee who has proven that discrimination was a substantial motivating factor for an employment action, but the employer proves by a preponderance of the evidence that it would have taken the same action against the employee anyway. The court holds that under such circumstances, a court may not award damages, backpay, or an order of reinstatement to the employee. However, the employee may still be awarded, where appropriate, injunctive or declaratory relief to stop discriminatory practices, and reasonable attorney’s fees and costs.
The California Supreme Court closes its opinion by setting forth what instruction to give a jury in a mixed-motive case. Specifically, a jury should be instructed that, it must find the employer’s action was “substantially motivated by discrimination” before the burden shifts to the employer to make a showing that it would have made the same employment decision anyway. Further, the employer who makes this type of showing, based on a preponderance of the evidence, prevents the jury from awarding damages, backpay, or an order of reinstatement to the employee. The court then affirms the judgment of the Court of Appeal overturning the damages verdict, and remands Harris’ case back to the trial court to determine whether the evidence of discrimination justifies a mixed-motive jury instruction.
This is a significant victory for California employers on different levels. First, the holding that an employee must prove that discrimination was a "substantial motivating factor" in the employer making its employment decision, as opposed to "a motivating factor," clarifies that an employee has a greater burden (than was instructed by the trial court) to prove discrimination. Second, despite the trial court's refusal to give a mixed-motive instruction, the California Supreme Court holds that a mixed-motive instruction is to be given to juries where an employee proves that discrimination was a substantial motivating factor for the employment decision, and the employer can show that the same decision would have been reached anyway. The availability of this defense to employers helps shield them from liability for stray comments or thoughts that are not acted upon. Lastly, although the court refuses to completely absolve an employer from liability where a mixed-motive defense is proven, the court does prevent a jury from being able to award damages, backpay, or an order of reinstatement where the employer proves that the same action would have been taken against the employee anyway.
Melanie Poturica and Morin I. Jacob submitted an amicus brief to the California Supreme Court on behalf of the League of California Cities and the California State Association of Counties in the Wynona Harris v. City of Santa Monica case.