Harris v. City of Santa Monica is currently pending before the California Supreme Court.  It is unclear at this point when a decision will be handed down, but we are closely monitoring the case and will continue to do so.  Oral arguments have not been held yet.

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 she was terminated she sued the City and alleged 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.   

The issue before the Supreme Court is the scope of permissible jury instructions.  The trial court refused to instruct the jury on a mixed-motive defense.  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 the Harris case) even though other factors may also have been involved.  The employer then has an opportunity to demonstrate that legitimate other reasons came into play so as to defeat liability.  The trial court refused to instruct the jury on a mixed-motive defense and thereby deprived the City of its right to have the jury decide whether the City had proved its legitimate, non-discriminatory reasons for terminating Harris.  In other words, the jury was not instructed whether it could determine if Harris would have been terminated for legitimate reasons even though the City had knowledge she was pregnant before she was terminated.

This case has far reaching implications for all California employers, and especially for government employers.  The State Supreme Court has held that public employment in California is governed by statute, not by contract, and thus permanent government employees must be afforded due process protections before they can be terminated from public employment.  However, government entities can release probationary employees without cause and without the right to appeal.  Probationary employees can be terminated for any reason, so long as the reason is not in violation of the law.

The probationary period is an integral part of the recruitment, hiring and evaluation process.  This time period is relied upon by government employers as an opportunity to gauge objective and subjective factors relating to work performance during the period before the employee gains permanent status.  Failing to apply the mixed motive defense can severely hamper this opportunity.  For example, suppose a probationary employee is nearing the end of her probationary period and three supervisors gather to evaluate her performance to determine whether the employee will be awarded permanent status.  Assume that two of the supervisors describe compelling and overwhelming legitimate, nondiscriminatory reasons to terminate the employee during the probationary period.  However, assume that one of the supervisors makes a discriminatory remark about the employee’s gender during the meeting.  (That supervisor should surely be counseled and disciplined for making such an inappropriate remark.)  Assume further that the employee is still terminated during the probationary period because of the legitimate and nondiscriminatory performance based reasons, and despite the discriminatory remark about her gender.  This hypothetical serves as an example of the need for public employers to be able to assert the mixed motive defense.  The public employer’s hands should not be tied where one supervisor, for example, makes a stray discriminatory remark where compelling and legitimate reasons exist and are relied upon for the dismissal of an employee.  Moreover, the public employer’s hands should not be tied where the same decision would have been reached even if the discriminatory remark had not been made. 

Public employers cannot afford to let probationary employees gain permanent status unless the employee’s performance warrants it.  This is particularly important given California’s budgetary problems that require public agencies to do more with less.  The trial court’s refusal to instruct the jury on a mixed motive defense deprived the City of its right to have the jury decide whether the City had proved its legitimate, non-discriminatory reasons for terminating Harris even though the City had knowledge she was pregnant before she was terminated.