Harris v. City of Santa Monica: CA Supreme Court Clarifies “Mixed Motive” Theory Under FEHA
On behalf of California Civil Rights Law Group on Tuesday, February 12, 2013.
In a highly anticipated decision last week, the California Supreme Court handed down its ruling in Harris v. City of Santa Monica. Terminated a mere eight days after informing her employer that she was pregnant, Ms. Harris sued the City of Santa Monica for pregnancy discrimination under the Fair Employment and Housing Act (FEHA). In its answer, the City of Santa Monica argued that it had legitimate reasons for terminating her, specifically issues related to her performance and attendance.
When it came time to instruct the jury, the trial court denied the defendant’s request to instruct the jury that “if it found a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her.” Instead, the court instructed the jury to simply determine whether Ms. Harris’ pregnancy was a “motivating factor” in her termination, to which the jury returned a $177,905 verdict for Harris.
When the City of Santa Monica appealed the decision, the Court of Appeal held that a prejudicial error was made when the lower court refused to give the “mixed motive” instruction requested by the City and remanded the case for a new trial. However, consistent with the jury’s decision, the appellate court also acknowledged the considerable evidence supporting the argument that Ms. Harris’ pregnancy was in fact a “motivating factor” in the City’s decision to terminate her. This prompted Harris to petition the California Supreme Court to review her case.
During the Supreme Court’s review, the City of Santa Monica invoked Price Waterhouse v. Hopkins (1989) 490 U.S. 288, in which the U.S. Supreme Court legitimized what is known as a “same-decision” defense. Under Price Waterhouse, employers are given complete immunity from liability if they are able to demonstrate that they would have made the same employment decision regardless of discrimination. In other words, even if Ms. Harris could demonstrate that her pregnancy was a motivating factor in its decision to terminate her, the City argued that the “same-decision” defense established by Price Waterhouse protected it against any liability. Nevertheless, the argument did not end there.
In the 6-0 decision, Justice Goodwin Liu pointed out that the Price Waterhouse decision was a “short-lived” one (emphasis added):
Two years [after Price Waterhouse], Congress passed the Civil Rights Restoration Act of 1991, which (among other things) codified the rule that an employer’s same-decision showing limits the remedies available to a Title VII plaintiff but does not provide a complete defense to liability … Congress further provided that when an individual “proves a violation” of Title VII and the employer shows it “would have taken the same action in the absence of the impermissible motivating factor,” a court can “grant declaratory, injunctive relief … , and attorney’s fees and costs” directly attributable to the Title VII claim but “shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment ….”
Further asserting the Court’s position, Justice Liu referred to the language of the FEHA itself, which expressly prohibits employers from discriminating against employees “because of” pregnancy, among other protected categories. Particular consideration was given to the act’s use of the phrase “because of,” which employers have cleverly argued opens the door to what is known as “but for” causation. According to this argument, FEHA plaintiffs must go beyond demonstrating that a protected category – in this case pregnancy – was a motivating factor in an employer’s termination decision and instead show it to be the motivating factor.
Were such an argument to be held up under the FEHA, it would place what in many cases would be a debilitating burden onto plaintiffs while simultaneously undermining the very integrity of the statute – making it of minimal consequence to employers, even those who admittedly engage in discriminatory behavior toward their employees. As the Court noted, “Section 12940(a) does not say that the employment action must be ‘solely because of,’ ‘exclusively because of,’ or ‘predominantly because of’ improper discrimination.”
The Court also made clear its agreement with Ms. Harris’ view that showing discrimination to be a motivating factor in the City’s termination decision is sufficient to satisfy the statute. In fact, it held that such a view “is consistent with the long-standing interpretation of section 12940(a) adopted by the Fair Employment and Housing Commission (FEHC) as well as Congress’s understanding of the phrase ‘because of’ when it amended Title VII’s prohibition on employment discrimination in 1991.”
It was from these determinations that Justice Liu ultimately reached the crux of the Court’s decision, which centered on two focal points: language and purpose. After demonstrating the futility of a “but for” causation argument relative to FEHA, Justice Liu underscored the Court’s need to “ultimately focus our attention on what the Legislature said it sought to accomplish in enacting FEHA.” In so doing, the Court arrived at the conclusion that “allowing a same-decision showing to immunize the employer from liability . . . would tend to defeat the purposes in the FEHA.”
As Justice Liu points out, one such purpose – the provision granting “effective remedies” meant to “prevent and deter unlawful employment practices” – lends itself to the conclusion that the statute’s language barring discrimination cannot be reasonably determined to exclusively cover instances in which discrimination is the sole cause for termination. Such a determination, the Court concluded, would deliver a devastating blow to the FEHA’s intended purpose of “preventing and deterring unlawful employment practices.”
Despite successfully belying the City of Santa Monica’s “same-decision” argument as a complete defense under the FEHA, however, the Court did reject Ms. Harris’ request to impose a “clear and convincing” standard of proof for such a defense. As a result, the Court concluded that although a successful “same-decision” argument does not absolve an employer of all liability, it does allow them to avoid liability for certain awards, specifically those of damages, backpay and orders of reinstatement.
Nevertheless, the Court also made it clear that plaintiffs who find themselves on the losing end of a “same-decision” defense – plaintiffs like Ms. Harris, for example – are still eligible for declaratory and injunctive relief, as well as attorney’s fees and costs. To be sure, Harris in no way allows an employer to escape all liability by successfully making a “same-decision” defense.
Though hailed by some as “a major win for employers“, the Harris decision is a narrow victory at best, and given the Democratic control of Sacramento, a potentially fleeting one at that. By effectively nullifying the power to evade all liability enshrined in the “same-decision” defense of Price Waterhouse, the California Supreme Court has made it clear to employers that the restorative purpose of the FEHA will not be questioned. Just as the ends do not justify the means, there is no basis for an employment decision that renders discrimination inconsequential.