California Supreme Court issues important "Mixed Motive" decision - with mixed results
 March 26, 2013

On February 7, 2013, the California Supreme Court issued an eagerly anticipated decision defining the scope of an employer‟s defense to a discrimination claim when an adverse employment decision was motivated by more than one factor. In Harris v. City of Santa Monica, the Court ruled that to establish liability in "mixed motive" cases under the California Fair Employment and Housing Act (FEHA), the employee must show that the unlawful discrimination was a substantial factor motivating the adverse employment decision. Then, the burden of proof shifts tothe employer to prove that it would havemade the same decision at that time, forlegitimate business reasons. The essence of a"mixed motive" defense is that an employerhad a legitimate reason for the adverseaction, which standing alone would haveinduced it to take the action.

During her probationary period as a busdriver, Ms. Harris had several performance-related problems, including two "preventable accidents" (including one thatdamaged her bus) and reporting late to hershift without providing the one hour noticerequired by City policy. She received awritten performance evaluation with a"further development needed" rating. TheCity‟s Transit Services Manager decidedto terminate her for not meeting performance standards during her probationary period. But, before the termination was carried out, Harris happened to tell her supervisor that she was pregnant. Her supervisor appeared „displeased‟ and requested a doctor‟s note clearing her to continue to work, which she provided. Two days later, she was terminated.

She sued the City and alleged that her termination was discriminatory. The City's claimed she was terminated for poor performance. At trial, the City requested a "mixed motive" jury instruction, telling the jury that the City could not be held liable if it proved that it would have discharged Harris for legitimate

The Supreme Court unanimously ruled that an employer can establish a "mixed-motive" defense to a discrimination claim. But, even if the jury finds that the employer did have a legitimate reason for the termination the jury finds that the defense is not absolute. While the employee cannot recover damages for lost income or emotional distress, and the employee wouldn‟t be eligible for reinstatement, the court can still impose an order directing the employer to stop its discriminatory practice and to pay the employee’s reasonable attorneys’ fees and court costs. The Court ruled that it was appropriate for the to pay attorneys‟ fees and costs for litigation its own wrongdoing is a factor and wouldemployerin whichcompensate the employee and her counsel and would promote the FEHA‟s goal of deterring discrimination.

The Court also ruled that the judge‟s instruction was wrong because it required the jury to determine whether discrimination was just "a motivating factor/reason" for the employee‟s termination. A jury in a mixed motive case now should be instructed that it must find the employer‟s action was substantially motivated by discrimination, before the burden shifts to the employer to make a same-decision showing. The case will now go back for another trial. If the City can prove that it would have fired Harris even if she had not been pregnant, she won‟t receive money damages but may still recover her court costs and legal fees, including those incurred on the various appeals.

Prevention StrategiesAddress poor performance promptly and properly. Employees should not be genuinely surprised by an adverse action. Communicate clearly and constructively when expectations aren‟t being met. Explain the potential adverse employment consequences that may occur if the employee doesn‟t demonstrate immediate and sustained improvement. Avoid using subjective language about employee performance in evaluations or email. Prohibit references to job protected leaves in evaluations. Make sure that front line leaders know that although you may terminate an employee who demonstrates during an introductory period that she orhe won‟t likely be successful, FEHA prohibits a release that is motivated even partly by discrimination. If sued under FEHA, yourStand on rubber, cork or wooden surfaces rather than on concrete or metal floors.Use a footrest or foot rail to shift body weight from one leg to another. This will take pressure off the lower backChange working positions periodically.Relax shoulder and arm muscles when they become tense or stiff.It‟s important for workers to use their rest periods to relax or exercise other muscles. And, when returning to work after a vacation or illness, workers should give their body a chance to readjust to the standing activities their job requires.organization will need concrete documentation to establish that it made the decision about the employee for legitimate, nondiscriminatory reasons.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School,cum laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

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