California’s high court sets high bar for employment discrimination plaintiffs

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Earlier this year, California’s Supreme Court decided Harris v. City of Santa Monica, in which it raised the bar for plaintiffs seeking to prove that their employer illegally discriminated against them. Plaintiffs must now prove that discrimination was a substantial factor, not just a motivating factor in an employer’s decision to terminate employment.

This decision is a departure from the standard trial courts have applied for the last ten years. Before this decision, trial courts relied on a Judicial Council-sanctioned jury instruction (CACI No. 2500) that said plaintiffs must show discrimination was “a” motivating factor in an employer’s termination decision. The state Supreme Court’s decision does away with that instruction. Plaintiffs must now prove discrimination was a “substantial factor” in an employer’s decision.

The High Court went on to hold that if the employee succeeds in proving that discrimination was “a substantial motivating reason” for the adverse employment action, the burden shifts to the employer to prove that it would have made the same decision in any event for legitimate, non-discriminatory reasons. If the employer succeeds in proving it would have made the same decision, a court may not award damages, back pay, or reinstatement. At the same time, the Court held that an employee who overcomes the first hurdle and proves that discrimination was a substantial motivating reason for the termination can still obtain injunctive and declaratory relief, as well as reasonable attorneys' fees and costs under Cal. Gov’t Code § 12965(b).

Here are the facts of the case. Harris, a bus driver for Santa Monica's city-owned bus service, was terminated for performance reasons shortly after notifying her supervisor that she was pregnant. She sued the City, alleging that the City fired her because she was pregnant, a form of sex discrimination. The case was tried to a jury, and the Court instructed the jury using California Civil Jury Instruction (CACI) No. 2500 that Harris had to prove pregnancy was a "motivating factor/reason for the discharge." The jury found by a vote of nine to three that Harris's pregnancy was a motivating reason for the City to discharge her and awarded her $177,905 in damages and $401,187 in attorneys' fees. The City appealed the verdict and the Court of Appeal overturned the verdict, holding that it was prejudicial error not to have given the jury a mixed motive instruction.

In affirming the Court of Appeal's judgment overturning the damages verdict, the Court held that rather than instructing the jury under CACI No. 2500 to determine whether discrimination was "a motivating factor/reason" for Harris's termination, the jury should have instead determined whether discrimination was "a substantial motivating factor/reason" for her termination.

This is an important decision for employers, as it raises the burden of proof that plaintiffs must meet to prove unlawful discrimination. At the same time, the Harris decision may not substantially deter plaintiffs' attorneys from bringing discrimination lawsuits, because they are still able to recover attorneys' fees if the plaintiff proves that discrimination was a substantial motivating reason for a termination decision. Employees, however, may be less inclined to bring discrimination lawsuits if the end result is that only their attorneys will obtain a significant recovery from the employer, in the form of attorneys' fees.

The takeaway for employers is to make sure that all employment decisions, and the reasons for them, are well-documented so that you can establish the legitimate reasons for an employee’s termination. Discrimination cases often arise after an adverse employment decision that happens to occur when an employee is experiencing a life event that could put that employee into a protected class, for example, during a pregnancy or while an employee is out on medical leave or worker’s compensation. Consult an attorney before taking any adverse actions against an employee.