Legal Briefing: Discrimination as a Substantial Motivating Factor

By James Denis

Mar. 8, 2013

Wynona Harris, a bus driver employed by the city of Santa Monica, California, was fired on the same day she submitted a doctor’s note to her supervisor stating that she could continue working through her pregnancy with limited restrictions. Harris sued, alleging pregnancy discrimination in violation of California’s Fair Employment and Housing Act, or FEHA.

At trial, the city asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives. The city could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee. The appeals court reversed the decision. It held that the requested instruction was legally correct and that refusal to give it was prejudicial error.

The California Supreme Court affirmed the appeals court’s decision. The state Supreme Court held that when a jury finds that unlawful discrimination was a “substantial factor” motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay or an order of reinstatement.

Requiring the plaintiff to show that discrimination was a substantial motivating factor ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. But the court also concluded that “in light of the FEHA’s purposes, especially its goal of preventing and deterring unlawful discrimination … that a same decision by an employer is not a complete defense to liability when the plaintiff has proven that discrimination on the basis of a protected characteristic was a substantial factor motivating the adverse employment action.” Harris v. Santa Monica, California, No. S181004, (Feb. 7, 2013).

IMPACT: Plaintiffs now have a heightened burden of showing discrimination when an adverse decision is based on both a discriminatory and non-discriminatory reason.

James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm of Barlow, Kobata and Denis, with offices in Los Angeles and Chicago. Comment below or email Follow Workforce on Twitter at @workforcenews.


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