Gavel and Flag.jpgHarris v. City of Santa Monica has been pending before the California Supreme Court since 2011.  Melanie Poturica and I submitted an amicus brief in the matter, supporting the City’s arguments.  On December 4, 2012, the Supreme Court held oral arguments and will issue its opinion within 90 days, in 2013.

In Harris, plaintiff disclosed to her supervisor that she was pregnant before she was terminated but while she was still on probation as a new hire.  After the City terminated her employment, she sued it alleging that she was fired for discriminatory reasons; i.e., because she was pregnant.  The City’s position was that she was terminated for poor performance.  

In October 2004, the City hired Wynona Harris as a bus driver trainee.  Harris was promoted to probationary part-time driver after having an accident.  After her promotion, she had yet a second bus accident.  Harris also failed to give management sufficient notice that she would be missing a shift. In March 2005, Harris’s supervisor gave her a three-month written performance evaluation with a “further development needed” rating.  Then Harris, again, failed to give adequate notice that she would miss a shift.  The City then decided to release Harris from her probationary position.  About one week later, Harris told her immediate supervisor that she was pregnant.  Her supervisor’s response was: “Wow.  Well, what are you going to do?  How far along are you?” Two days later, the City notified Harris of her termination. Harris subsequently sued the City for pregnancy discrimination, based in part on her supervisor’s alleged discriminatory remarks, and the case went to trial.

The issue before the Supreme Court is the application of the mixed-motive jury instruction in employment litigation brought under California’s Fair Employment and Housing Act.  In a mixed-motive case, to establish “because of” causation, the plaintiff’s initial burden is to prove that discrimination was “a” motivating factor in the adverse employment action (i.e., termination in this case) even though other factors may also have been involved.  The employer then has an opportunity to demonstrate that legitimate reasons came into play so as to defeat liability.  The trial court refused to instruct the jury on a mixed-motive defense.  The City challenges the trial court’s decision because it deprived it of its right to have the jury determine, or even consider, whether the City proved legitimate, non-discriminatory reasons for terminating Harris.  In other words, the jury was not instructed to determine whether the City would have terminated Harris for legitimate nondiscriminatory business reasons despite its knowledge that she was pregnant before it gave her notice of her termination.

We will continue to monitor this case and update you when the Court issues its opinion.