Employers Gain Ground in Job Bias Defenses

A closely watched test of employment discrimination law in California gave added protection to employers Thursday, but it wasn’t a complete loss for labor lawyers. The California Supreme Court held that employers who have “mixed motives” for firing a worker, both discriminatory reasons and legitimate reasons, may escape liability for damages. But they cannot escape responsibility for changing their discriminatory practices and being held liable for the worker’s attorney fees.

The unanimous 6-0 decision (Justice Marvin Baxster did not participate) was a mixed bag that gave a little to each side, but may prove to be the most help for employers.

Once jurors find an employer’s actions are “substantially motivated by discrimination” the burden shifts to the employer to show by a relatively low standard of “preponderance of the evidence” that they also had a legitimate motive for the firing.

In essence, the ruling gives employers the right to assert a “mixed-motive” defense to avoid liability in employment discrimination cases brought under the California Fair Employment and Housing law.

Until this ruling courts in the state had relied on a jury instruction that jurors must decide if discrimination was a “motivating factor” in the discriminatory labor action. Now employers will be able to assert a “mixed-motive” defense, if there was a good reason, apart for their dscriminatory behavior, to fire a worker.

Wynona Harris, a new driver for Santa Monica’s Big Blue Bus transit system, was involved in two noninjury accidents shortly after she was hired in 2004. In 2005 she missed worked days without notifying her supervisor and in May of that year told her boss she was pregnant. She lost her job a week later. She sued claiming she was let go because she was pregnant.

Jurors sided with Harris over the city and she was awarded $178,000 in damages.

The trial court used the “motivating factor” instruction, but a state appeal court overturned the case saying the city should have been allowed to present a “mixed motive” affirmative defense to the jury; that is, that her poor performance was a legitimate reason for her dismissal, despite her pregnancy.

Justice Goodwin Lui said, “When a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time. If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement.”

However, Lui said employers whose actions include discriminatory actions should not get off Scott free.

Where appropriate, the worker may be entitled to a court order barring similar future conduct by the employer and the worker may also collect attorney fees and costs.

The court’s logic was that by allowing injunctive relief, employers will be pushed to avoid discrimination, and wronged-workers will still be able to find lawyers willing to risk representing them on a contingency basis.

Case: Harris v. City of Santa Monica, No. S1881004



Leave a Reply

Your email address will not be published. Required fields are marked *