In February of 2013, the California Supreme Court issued its ruling in Harris v. City of Santa Monica, which made it more difficult for employees to prove discrimination as a cause in being terminated and recovering damages under the California Fair Employment and Housing Act (FEHA).
In Harris, a bus driver for the City of Santa Monica claimed that she was fired by the city because of her pregnancy, in violation of FEHA. The city, on the other hand, argued that the bus driver was terminated because of her poor job performance and used evidence of accidents she caused during her training and probationary periods, along with two “miss-outs” she received when she reported late to work. In state court, the city wanted to use the “mixed-motive defense,” instructing the jury that if it found a mix of both discriminatory and legitimate motives in the city’s decision to terminate Harris, the city would not be liable if the legitimate motive alone would have led to the termination. The court refused to instruct the jury in this way. Instead, the court instructed the jury stating that the employee only had to prove that her pregnancy was a “motivating factor/reason for the discharge.” As a result, the jury returned with a verdict for the employee. The city appealed the judgment.
The case ultimately reached the California Supreme Court. The Supreme Court found that the lower court had made a mistake in refusing to offer the instruction, stating that it should have allowed the city’s “mixed-motive defense.” Specifically, the Supreme Court raised the bar for employees, who would now have to show, by a preponderance of evidence, that discrimination was a “substantial factor” motivating an employer to terminate the employee. Once the plaintiff has shown sufficient evidence that the discrimination was a “substantial factor” in the employer’s decision to terminate the employee, the burden then shifts to the employer to show that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time.
This does not mean that an employer can simply “make up” a non-discriminatory and legitimate reason for the termination after the fact. The reasons had to exist at the time of termination. Moreoever, the employer must show that the legitimate reason, standing alone without the discriminatory factor, would have pushed the employer to make the same decision of terminating the employee.
The Supreme Court placed the higher standard on the employee so as to assure that employers cannot be found liable for discrimination and wrongful termination simply because of isolated remarks by managers. In a lot of employment discrimination cases, employees tend to rely upon weak and circumstantial evidence to support their claims. The Harris decision makes it more difficult for employees to rely on this type of circumstantial evidence in proving a case of discrimination. Finally, employoers can now rely upon the “mixed-motive” defense to significantly reduce an employee’s recovery, even if it is found that discrimination was a factor in the employment decision.