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In Harris v. City of Santa Monica, No. S181004 (Cal. Feb. 7, 2013), the California Supreme Court held that a plaintiff can establish a claim of employment discrimination by showing that discrimination was a substantial motivating factor in the decision-making process.  The Supreme Court also held that even if a plaintiff establishes that discrimination was a substantial motivating factor in the decision-making process, the defendant is entitled to establish a “mixed motive” defense by proving that legitimate factors would have been sufficient, absent the discrimination, to produce the same decision.  On the surface, these two holdings appear contradictory.  That each of those propositions is true highlights the significance of the Court’s rulings on remedies.  Even if the defendant establishes its mixed motive – or same-decision – defense, that defense does not immunize the employer from liability.  Instead, the plaintiff may potentially be entitled to declaratory or injunctive relief, and may recover attorneys’ fees even though the employer successfully establishes its defense.

Harris arose after the city terminated Harris’ employment two days after she told her supervisor that she was pregnant.  Although the city claimed that it terminated Harris’ employment because of poor performance, and Harris claimed that the city was motivated by her pregnancy, the Court of Appeal concluded that “a third possibility exists.  This third possibility involves the mixed-motive defense.

At trial, following local rules, the court used the Judicial Council’s California Civil Jury Instructions (“CACI”), which do not contain a mixed-motive instruction.  The Court of Appeal held that the trial court committed error when it refused to give the mixed-motive instruction tendered by the city. 

In affirming the decision of the Court of Appeal, the Supreme Court considered a series of related issues.  Each of these issues could have been decided differently. 

First, neither the Supreme Court nor the California Courts of Appeal had squarely addressed whether the mixed motive or same-decision defense was even available under FEHA.  The CACI jury instruction the trial court used imposed liability if Harris proved that discrimination was a “motivating factor/reason for the discharge,” thus suggesting that the mixed-motive defense was not available. Harris’s attorneys urged the Supreme Court to uphold this instruction, allowing a plaintiff to prevail and receive the full range of remedies by proving merely that discrimination was a motivating factor.  The Supreme Court rejected Harris’s argument and determined that an employer has a defense if it can prove “that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.”  Harris slip op. at 19.

Second, the Supreme Court had to decide whether the employer was required to establish its same-decision defense by a preponderance of the evidence or, instead, by clear and convincing evidence.  The Supreme Court rejected Harris’s argument that a defendant-employer must establish the defense by clear and convincing evidence and held that, because “employment discrimination litigation does not resemble the kind of cases in which we have applied the clear and convincing standard, . . . preponderance of the evidence is the standard of proof applicable to an employer’s same-decision showing.”  Harris slip op. at 40. 

Third, the Supreme Court considered whether the City was required to concede that it had mixed motives before it could request a mixed motive jury instruction.  The Court observed that “there is no inconsistency when an employer argues that its motive for discharging an employee was legitimate, while also arguing, contingently, that if the trier of fact finds a mixture of lawful and unlawful motives, then its lawful motive alone would have led to the discharge.”  Harris slip op. at 42. 

Fourth, the Supreme Court considered the remedy available to a plaintiff who proves that discriminatory animus was a substantial factor in the decision-making process even though the employer, in the absence of any discrimination, would have made the same decision.  As stated above, Harris argued that she was entitled to the full range of remedies even if the employer had legitimate reasons not to retain her services.  The Supreme Court rejected this contention, stating that back pay, reinstatement, or damages for economic loss would constitute an unjustified windfall if the employer establishes its same-decision defense.  The Court reached the same conclusion with respect to noneconomic damages, noting that “the issue is closer:” “When an employee is fired, and when discrimination has been shown to be a substantial factor but not a ‘but for’ cause, we believe it is a fair supposition that the primary reason for the discharged employee’s emotional distress is the discharge itself.”  Harris slip op. at 32-33.  Accordingly, the Supreme Court limited the remedies to attorneys’ fees and to injunctive or declaratory relief when appropriate.

The decision in Harris aligns California law under the Fair Employment and Housing Act with Title VII.  The California Supreme Court, however, achieved a result that, under Title VII required legislation in the form of Section 107 of the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e–2(m) &2000e-5(g)(2)(B). 

This potential to recover declaratory or injunctive relief and attorneys’ fees in cases where the employer has strong defenses to support its ultimate employment decision will in many cases significantly affect the analysis when the parties contemplate whether to settle or try a case.  Although question whether the employment decision was the result of a mixed motive is typically raised as a defense, under the logic of Harris we may see plaintiffs’ counsel argue for a mixed-motive jury instruction.  Even when the evidence strongly establishes that the employer had a legitimate nondiscriminatory reason for its employment decision, plaintiffs’ counsel may nevertheless attempt to convince a jury that discriminatory animus was nevertheless a substantial factor in the decision-making process in order to recover attorneys’ fees and to seek injunctive or declaratory relief.

Consider Harris on remand.  Plaintiff has already convinced one jury that discriminatory animus was a motivating factor, and if she can convince the next jury that it was a substantial motivating factor, she stands to recover her attorney fees and perhaps declaratory or injunctive relief, even if the City does establish its same-decision defense.  Although Harris is in a rare posture because of the prior jury verdict, in other cases plaintiff’s counsel may be more willing to go to trial even in the face of strong evidence of legitimate nondiscriminatory reasons with the belief that recovery of attorneys’ fees is the “floor.”  So, while neither employers nor the plaintiffs’ bar perceives Harris as a “big win,” it remains to be seen how the ruling will affect plaintiffs and employers when deciding whether to settle a case or go to trial.