California Supreme Court Upholds “Mixed Motive” Defense in Employment Discrimination Cases

Authors: Esra A. Hudson | Alison Sultan White

In a long-awaited ruling issued Thursday, February 7, 2013, the California Supreme Court affirmed the Court of Appeal's decision overturning a damages verdict against the City of Santa Monica, finding that employers may properly assert a "mixed motive" defense in discrimination cases to defeat liability for damages, where they can show that the employee would have been fired anyway for a nondiscriminatory reason.  In the case Wynona Harris v. City of Santa Monica, Case No. S181004, the Court held that when a jury finds that unlawful discrimination was a "substantial factor" motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay, or an order of reinstatement.  At the same time, the Court held that an employee who proved that discrimination was a substantial motivating reason for his or her termination can still be entitled to injunctive and declaratory relief, as well as reasonable attorneys' fees and costs.

Harris, a bus driver for Santa Monica's city-owned bus service, was terminated for performance reasons shortly after notifying her supervisor that she was pregnant.  She sued the City, alleging that the City fired her because she was pregnant, a form of sex discrimination.  The case was tried to a jury, and the Court instructed the jury using California Civil Jury Instruction (CACI) No. 2500 that Harris had to prove pregnancy was a "motivating factor/reason for the discharge." The jury found by a vote of nine to three that Harris's pregnancy was a motivating reason for the City to discharge her and awarded her $177,905 in damages and $401,187 in attorneys' fees.  The City appealed the verdict and the Court of Appeal overturned the verdict, holding that it was prejudicial error not to have given the jury a mixed motive instruction. 

In affirming the Court of Appeal's judgment overturning the damages verdict, the Court held that rather than instructing the jury under CACI No. 2500 to determine whether discrimination was "a motivating factor/reason" for Harris's termination, the jury should have instead determined whether discrimination was "a substantial motivating factor/reason" for her termination.   

This is an important decision for employers, as it raises the burden of proof for plaintiffs to meet in proving discrimination.  At the same time, the Harris decision may not substantially deter plaintiffs' attorneys from bringing discrimination lawsuits, because they are still able to recover attorneys' fees if the plaintiff proves that discrimination was a substantial motivating reason for his or her termination.  Employees, however, may be less inclined to bring discrimination lawsuits if the end result is that only their attorneys will obtain a significant recovery from the employer, in the form of attorneys' fees.