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California’s Fair Employment and Housing Act (“FEHA”) makes it illegal for an employer to discriminate against certain protected classes of people (i.e., race, religion, gender, sexual orientation, etc.)  However, there can be instances when employer discrimination is not the main motivating factor for adverse treatment to an employee.  Courts have the difficult task of discerning where an employer’s actions fall on the scale ranging from purely discriminatory to purely legitimate.  In many cases, the set of facts will lead a court to determine that while the employer may have had a discriminatory bias against the employee, the employer’s actions were based on legitimate non-discriminatory reasons.  There will also be instances where employees feel they cannot prevail on an intentional discrimination claim without a mixed-motive instruction.  A recent California Supreme Court case addresses the burden of proof in “mixed-motive” discrimination cases and whether, and to what extent, employees are barred from recovery non-discriminatory reasons played an equal part in motivating the adverse employment action.

Harris v. City of Santa Monica & The Mixed-Motive Defense

In Harris v. City of Santa Monica, the employee (“Employee”) was a bus driver for the city of Santa Monica (“The City”).  The Employee had accrued a less than satisfactory performace record over the course of her employment, including multiple at-fault accidents, reporting late to work, and violation of other employment policies.  Before an employment decision had been made regarding her employment, the Employee had an encounter with a manager who chastised her for not having her shirt tucked into her pants.  When the Employee replied that she was pregnant, the manager allegedly looked displeased and told her to present a doctor’s note verifying her pregnancy and ability to work.  Later that same day, the manager attended a meeting in which they reviewed a list of probationary employees who were not meeting the standards for continued employment.  The Employee, whose name was on the list, was terminated following that meeting.  The Employee then filed suit against the City, alleging that she was terminated due to her pregnancy, which constituted a form of sex discrimination.

In the trial court, the City moved for a jury instruction regarding the “mixed-motive” defense.  By this instruction, the City asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives behind the City’s decision to terminate the Employee, the City Could avoid liability by proving that it would have made the same decision to terminate the Employee putting the discriminatory factor aside.  The trial court denied the motion and refused to give the instruction.  Subsequently, at the conclusion of trial the jury found for the Employee and awarded her damages exceeding $175,000.  In addition, the trial court awarded attorney’s fees in excess of $400,000.  The City appealed and the Court of Appeals reversed the decision of the trial court, holding that the trial court should have issued the instruction.  The Employee petitioned to the California Supreme Court, which granted review.

In reviewing the case, the Court held that while an employer can assert the “mixed-motives” defense, a successful defense will not absolve the employer of all liability. The Court explained that it would go against public policy and the spirit of FEHA to allow employers to escape liability when discrimination is shown to be a substantial motivating factor in the employment action. Hence, in remanding the case to the lower trial court the California Supreme Court, held when an employee proves that discrimination was a “substantial factor motivating” the adverse employment decision, an employer asserting a mixed-motive defense may still be required to pay reasonable attorney’s fees and costs.  The employee, however, cannot be awarded damages, backpay, or an order of reinstatement.


The Harris decision illustrates that employers may still be liable to an employee even if they successfully assert the “mixed-motives” defense.  Attorneys’ fees can often be high.  So the possibility of paying attorneys’ fees despite not paying damages could force employer’s who plan on asserting this defense to opt for settlement.

However, the Harris Court may have unintentionally made it harder for employees to prevail in FEHA mixed-motive discrimination cases. Before Harris, all employees needed to show in such mixed-motive cases was that discrimination served as a “motivating reason” for the adverse employment action, though other reasons may have existed.  And California Jury instruction CACAI 2500 says just that.  However, the Harris Court held that juries deciding mixed-motive cases should instead determine whether discrimination served a “substantial factor motivating” the employer’s adverse decision.  Employers will be quick to seize on that language and argue that employees now have a heightened evidentiary burden in proving discrimination in mixed motive cases.   Employees, however, will be able to argue that the court, in choosing this language, simply wanted to re-emphasize that the discrimination needed to trigger liability in potential mixed-motive cases must be of the kind that is more than just trivial or isolated.

The Harris case does not set a bright line rule for identifying slight versus substantial discriminatory bias or rationale in mixed motive cases.  It will therefore be interesting to see how California courts choose to apply the Harris rule in mixed-motive cases in the months to come.

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