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WSHB Case Update – California Supreme Court’s "Mixed-Motive" Decision Is A Mixed Bag For Employers

February 19, 2013

In a closely watched employment case, the California Supreme Court unanimously ruled that employees are not entitled to damages when discrimination factors into a termination if the termination would have occurred regardless of the discrimination.


Plaintiff Wynona Harris was hired as a bus driver trainee in October 2004 by the City of Santa Monica.  During her training and probationary period, she was involved in two accidents that the City deemed “preventable,” and she incurred two “miss-outs” for failing to report for her scheduled shift.

In May 2005, Ms. Harris informed her supervisor that she was pregnant.  Six days later, her employment was terminated.  Ms. Harris sued, claiming that she was terminated because she was pregnant.  The City asserted that it had a legitimate, non-discriminatory reason for the termination.

A jury found that Ms. Harris’ pregnancy was a motivating reason for the City’s employment decision, and awarded $177,905 in damages.  The trial court awarded attorney’s fees of $401,187.

On appeal, the City argued that the trial court’s refusal to give its requested instruction regarding its “mixed-motive” defense was prejudicial error.  The Court of Appeal agreed.  Ms. Harris appealed to the California Supreme Court.


In a 6-0 decision, the Court held that when a plaintiff has shown that discrimination was a substantial motivating factor for the termination, the employer is then entitled to demonstrate that legitimate, nondiscriminatory reasons would have led to the same decision at that time.  If the employer proves that it would have made the same decision for lawful reasons, then the plaintiff is not entitled to recover damages, backpay, or reinstatement.  However, the plaintiff may be entitled to declaratory or injunctive relief, and may be eligible for attorney’s fees and costs.


The Fair Employment & Housing Act (“FEHA”) prohibits discrimination in employment.  Specifically, Government Code §12940(a) prohibits an employer from taking an adverse employment action “because of” a person’s protected status. 

CACI 2500 is the standard jury instruction that sets forth the essential factual elements a plaintiff must prove in an employment discrimination case.  It states that the plaintiff must prove that discrimination was “a motivating reason” for the employment decision.  However, until now, the degree of causation required by the “because of” language was unsettled.

After considering the legislative history and federal decisions, the Court held that a plaintiff must show, by a preponderance of the evidence, that “discrimination was a substantial motivating factor, rather that simply a motivating factor . . . .”  (Emphasis in original.)  The Court determined that the substantial motivating factor test satisfies the deterrent purpose of the FEHA, while also more effectively ensuring that liability will not be imposed based on evidence of mere thoughts or passing statements that are unrelated to the employment decision.

After the plaintiff satisfies this burden, the burden then shifts to the employer to show that it would have made the same decision regardless of any discrimination.  However, the employer does not satisfy its burden simply by establishing a legitimate and sufficient reason for the decision.  Instead, it must show that at the time it made the employment decision, it was motivated by legitimate reasons that would have resulted in the same employment decision, regardless of any discrimination. 

The Court acknowledged that finding that a plaintiff has satisfied its “substantial motivating factor” burden may result in an “unjustified windfall” for plaintiffs if the employer proves that it would have made the same decision regardless of discrimination.  In those cases, plaintiffs could recover backpay or an order of reinstatement, front pay, and future loss of income, in addition to non-economic damages.  At the same time, employers’ hands would be tied, as they would be forced to retain employees whose employment they would have terminated. 

Therefore, the Court held that if a plaintiff establishes that discrimination was a “substantial motivating factor” in the employment decision, and the employer then establishes that it would have made the same decision regardless of any discrimination, the plaintiff is not entitled to backpay, an order of reinstatement, or damages, including non-economic damages.  Instead, the employee may be entitled to a judicial declaration of the employer’s wrongdoing.  The trial court may also grant injunctive relief to stop discriminatory practices.  Finally, the plaintiff may be eligible for a discretionary award of reasonable attorney’s fees and costs, which would require the employer to absorb the litigation costs of its own wrongdoing but would avoid a windfall to plaintiffs.

Thus, the Court held that a jury in a “mixed-motive” case should be instructed that it must find that the employer’s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing.  Juries should further be instructed that a same-decision showing precludes an award of reinstatement, backpay, or damages.


Until now, juries have been instructed according to CACI 2500, which states that an employment discrimination plaintiff must show that illegal discrimination was “a motivating factor” in the employment decision.  The Harris decision raises the burden of proof for plaintiffs in employment discrimination cases.  However, the ruling may not deter plaintiffs’ attorneys from bringing discrimination lawsuits, as they are still able to recover attorney’s fees if the plaintiff can establish that discrimination was a substantial motivating factor for the employment decision. 

Furthermore, FEHA plaintiffs often assert tort claims for Wrongful Termination in Violation of Public Policy along with their FEHA-based claims.  These tort claims are generally duplicative of FEHA-based claims, but may now take on added significance, as the Court did not address whether or not the substantial motivating factor standard also applies to those claims.


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