California Supreme Court Says No Money Damages Available When Employer Proves Mixed Motive in FEHA Discrimination Case:

In Harris v. City of Santa Monica, the California Supreme Court issued a ruling that sets forth the details of the applicability of the “mixed-motive” defense available to employers in discrimination cases (FEHA). The Plaintiff in Harris was a city bus driver who was terminated for not meeting performance standards shortly after she told her supervisor she was pregnant. The City had requested a “mixed-motive” instruction that even if the City was “actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.” The jury returned a verdict in favor of Harris. The Court of Appeal reversed the verdict, holding the City was entitled to its requested “mixed-motive” instruction.

The California Supreme Court affirmed the Court of Appeal and ruled as follows:

  • “Substantial Factor” Standard of Proof: in a mixed-motive case, a plaintiff must prove that discrimination was a “substantial factor motivating” the employer to take the adverse employment action against the Plaintiff. (Thus, California’s standard jury instruction CACI NO. 2500 used in discrimination cases and which only requires a jury to determine whether discrimination was a “motivating factor/reason” is erroneous).
  • Burden Shifts to Employer to prove “Same-Decision” Defense: If a jury finds that an employer’s action was “substantially motivated” by discrimination, the burden then shifts to the employer to prove it would have made the same decision even without taking the unlawful factor into consideration.
  • No Money Damages: if the employer is successful in proving the “Same-Decision” Defense, then the plaintiff cannot recover money damages, back pay, or reinstatement because these remedies would be considered an undeserved windfall. However, the plaintiff may still be entitled to declaratory or injunctive relief and attorney’s fees.