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I. THERE ARE MOTIVATIONS AND THEN THERE ARE
The Supreme Court of California recently addressed a
challenging issue associated with employee wrongful termination actions. The
Supreme Court considered the situation where an employee establishes a
discriminatory motivation and the employer shows, by a preponderance of the
evidence, a legitimate, contemporaneous motivation for the employee's
discharge. The Court grappled with the legislative purpose underpinning
California's Fair Employment and Housing Act and an employer's right to fire
The Court, in Harris v. City of Santa Monica, held that in the situation where an
employee can show that her termination was partially motivated by
discrimination, and the employer can show a legitimate motive for the
termination, the employee is not entitled to damages or reinstatement, but may
be awarded declaratory or injunctive relief and reasonable attorney's fees.
II. EVERYBODY HAS THEIR REASONS
In Harris a city bus driver was terminated shortly
after she informed her supervisor that she was pregnant. The employer produced
evidence that the driver, who was on probation, was terminated for cause - she
had two accidents and on two occasions she failed to inform her dispatcher that
she would be late for her shift.
The court recognized the well-established burden-shifting
process aimed at "ferret[ing] out the 'true' reason for the employer's
action." However, the court also recognized that this analysis is
inappropriate where a plaintiff alleges that the employer harbored mixed
motives for the termination where "there is no single 'true' reason for
the employer's action." In other words, where an employer allegedly
terminated an employee for a mix of legitimate and discriminatory reasons, a
plaintiff should not have the burden of proving that the legitimate reason is
merely a pretext.
III. WHAT DOES "BECAUSE OF" REALLY
The California Fair Employment and Housing Act (FEHA)
prohibits, among other things, an employer from discriminating against a person
because of race, religion, national origin, disability, gender, age, or sexual
orientation. The Court first looked at the California Legislature's intent and
focused on the term "because of." The Court noted that this phrase
requires some level of causation. The court then focused on the "kind or
degree of causation" required by that term.
The court considered three possible interpretations of
"because of" causation: (1) where the employer would not have
terminated the employee 'but for' its discriminatory motive; (2) the
discriminatory motive was a "substantial factor" in the termination
decision; and (3) the discrimination was merely a "motivating factor"
in the employer's decision. Finding no persuasive guidance from California's
legislative history or case law, the Court looked to the U.S. Supreme Court's
interpretation of 'because of' contained in the context of Title VII.
IV. HOW ABOUT SAME-DECISION ANALYSIS
After a labored analysis of federal antidiscrimination
law, the Court returned to the California Legislature's purpose behind FEHA.
The Court noted that a same-decision showing requires proof by the employer
that, in the absence of any discrimination, it "would have made the same
decision at the time it made its actual decision," and not just that the
same decision could have been otherwise justified after the fact.
A. COMPLETE DEFENSE TO LIABILITY?
Considering the legislative intent of "preventing
and deterring unlawful discrimination," the Court found that a defendant's
same-decision showing will not be a complete defense to liability where the
plaintiff establishes that discrimination was also a substantial factor in the
employer's decision. The Court also added, "mere discriminatory thought or
stray remarks are not sufficient to establish employer liability."
B. DAMAGES FOR SUBSTANTIALLY DISCRIMINATORY
The Court walked a fine line, promoting the FEHA's
intention of discouraging discriminatory practices, while balancing an
employer's right to terminate an underperforming employee.
The Court rejected the plaintiff's position that she
should be reinstated and awarded back pay as well as compensation for her
economic losses based on a showing that discrimination was one of several
motivating factors - at least where the employer established that it also had a
non-discriminatory purpose. The Court reasoned that if the employee would have
been discharged anyway, reinstatement and back pay would constitute a windfall
and could have a chilling effect on employers. The Court drew a similar
conclusion with regard to non-economic losses.
Nonetheless, the Court did not allow the City to avoid
all consequences of its allegedly partially discriminatory act. To do so would
circumvent the FEHA's purpose. The Court held that an employment decision
substantially motivated by discrimination might warrant declaratory relief in
the form of a judicial declaration of employer wrongdoing under Cal. C. Civ.
Proc. § 1060. Such a declaration would address some of the emotional injuries
by "reaffirming the plaintiff's equal standing among her coworkers and
community, and condemn the discriminatory policies or practices." The
courts could also then grant injunctive relief to prevent recurrent
discriminatory conduct. But most significant is that a plaintiff, who makes a
showing that discrimination was a substantial factor motivating the employer's
termination decision, may be entitled to reasonable attorney's fees. Under the
facts of Harris, attorney's fees exceeded the jury's damages award: the
jury had awarded Harris $177,905 in actual damages and $150,000 for
non-economic losses but the trial court awarded her $401,187 in attorney's
The Court's decision does not preclude the possibility
that an employer can achieve a complete defense by showing that it had purely
legitimate reasons for discharging an employee. If, however, a plaintiff
establishes that discrimination was also a substantial motivating factor, the
employer may enter proof that it would have made the same decision absent such
discrimination and thereby preclude an award for damages, backpay or
v. City of Santa Monica, Case S181004, (Cal. Sup. Ct., Feb. 7, 2013)
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