Damages May Be Limited in Mixed Motive Cases

First Quarter 2013Articles California Update

The California Supreme Court held that an employee cannot recover all damages, even if the employee proves that unlawful discrimination was a substantial factor motivating the termination, if the employer can prove that it would have made the same decision regardless of such discrimination.

In Harris v. City of Santa Monica(2013) 56 Cal. 4th 203, the plaintiff bus driver had a history of performance issues. She had two “preventable accidents” in which she cracked the glass on the bus’ back door and hit a parked car. She then failed to report to her assigned shift on two occasions. Plaintiff’s manager reviewed her file and determined that she was not meeting the city’s standards for continued employment. Plaintiff then submitted a doctor’s note confirming her pregnancy. A few days later, the city terminated her employment. The plaintiff filed a sex discrimination suit under Fair Employment Housing Act claiming that she was terminated because of her pregnancy. The city, however, argued that she was terminated for poor performance. At trial, the court refused to instruct the jury that if it found a mix of discrimination and legitimate motives, the city could avoid liability by proving that a legitimate motive would have led to the same termination decision.

The Supreme Court held that the plaintiff must produce evidence sufficient to show that an illegitimate criterion was a substantialfactor in the particular employment decision. If the plaintiff can make such a showing, the employer is then “entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the same time.” Proof that the same decision would have occurred regardless of any discrimination thereby precludes any award of damages, back pay or reinstatement. The plaintiff, however, may still obtain declaratory or injunctive relieve, attorneys’ fees and costs. Employers are reminded to ensure that all terminations are for legitimate business reasons and well documented. Doing so will help to avoid or limit damages in similar “mixed motive” cases.