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Is Pregnancy Discrimination in Employment a “Substantial Factor” In a wrongful termination? by Melanie Porter, San Diego Office, Danz & Associates

Recent California Supreme Court Opinion in Harris v. City of Santa Monica Clarifies Standards of Proof in Employment “Mixed Motive” Cases and Limits Damages Available to Employees

On February 7, 2013, the California Supreme Court handed down a long-anticipated unanimous ruling in Harris v. City of Santa Monica (No. S181004) (Cal. Feb. 7, 2013) that may have a profound affect on employment discrimination cases under the Fair Employment and Housing Act (“FEHA”).  The Harris case involved a former bus driver who sued her former employer, the City of Santa Monica, for wrongful termination and sex (pregnancy) discrimination under the Fair Employment and Housing Act.  The FEHA is a California law that prohibits discrimination in the workplace based on protected categories of persons, such as race, age, disability and sexual orientation.  Cal. Gov. Code § 12940(a).

Early in her employment, the plaintiff, Wynona Harris, was involved in two preventable minor accidents and on two occasions reported to her shift late with less than an hour’s notice as required by the City’s policies, or “miss-outs.”  Later in her employment, the plaintiff became pregnant and advised her supervisor accordingly.  The plaintiff alleged her supervisor reacted negatively to the pregnancy news and shortly thereafter she was terminated.  Ms. Harris contended she was terminated due to her pregnancy, a protected category (i.e., sex) under the FEHA, and the City maintained her termination was warranted per her accidents and “miss-outs” under the City’s policies.   At trial the City requested a jury instruction of “mixed motive,” a defense that the City was not liable if it proved it would have discharged plaintiff for legitimate business reasons (i.e., the preventable accidents and “miss-outs”) even if the jury concluded the decision to terminate was substantially motivated by her pregnancy.  The City had failed to include “mixed-motive” as an affirmative defense in the answer to the complaint or lawsuit.  Nonetheless the Court allowed the “mixed-motive” request, but instead instructed the jury the standard was whether the discrimination was a “motivating reason” for the termination as opposed to a “substantially motivating” reason.

The California Supreme Court held a plaintiff “must produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision.”  Slip op. at 30.  The Court further explained that if the employee makes the required showing, the employer may make a “same-decision showing,” which is “proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made the actual decision.”  Slip. Op. at 19.  If the employer makes a “same-decision” showing, the plaintiff cannot recover damages, back pay, or be reinstated, but may obtain declaratory or injunctive relief and attorney’s fees and costs pursuant to FEHA.    As the Court so eloquently stated:   “The FEHA’s express purpose of ‘provid[ing] effective remedies that will … prevent and deter unlawful employment practices’ … suggests that section 12940(a)’s prohibition on discrimination is not limited to instances where discrimination is a ‘but for’ cause of the employment decision. An adverse employment decision substantially corrupted by racial, gender, or other improper discrimination may be indicative of a recurrent policy or practice.” Slip op. at 27.

In this respect, Harris has a profound affect on heightening the burden of proof for employees claiming discrimination and also substantially limits their damages where the employer can make a “same-decision” showing.  However, if he employer fails to make a “same-decision” showing, the plaintiff can still seek monetary damages, back pay and reinstatement in addition to equitable relief, attorney’s fees and costs.  Although the full impact if the Harris decision is yet to be seen, it may very well have a chilling affect on employees seeking to bring justice to unlawful discrimination claims due to the fear of substantially limited recovery where the employer san show they would have made the same-decision regardless of the employee’s protected category.