Harris v. City of Santa Monica

Facts

Santa Monica’s city-owned bus service, Big Blue Bus, hired Wynona Harris as a bus driver trainee and then promoted her to probationary, at-will part-time driver. (56 Cal.4th at pp. 211–212.) During her probation she had two accidents the City deemed “preventable” and two “miss-outs” (failures to give adequate notice of a missed shift), and received a performance evaluation stating “further development needed.” (Id. at pp. 211–213.) On May 12, 2005, Harris told her supervisor, George Reynoso, that she was pregnant; she testified he reacted with displeasure. (Id. at p. 212.) Days later the City terminated her. (Ibid.) Harris sued under the FEHA, alleging her firing was the product of pregnancy discrimination; the City contended it fired her for her documented performance problems. (Id. at pp. 212–214.)

Procedural history

At trial, the court gave the plaintiff’s “motivating factor/reason” instruction and refused the City’s requested mixed-motive (“same decision”) instruction. (56 Cal.4th at pp. 213–214.) The jury found for Harris and awarded damages. (Id. at p. 214.) The Court of Appeal reversed, holding the refusal of a same-decision instruction was prejudicial error. (Ibid.) The Supreme Court granted review and affirmed the reversal, but set out the governing causation standard and the consequences of a same-decision showing, remanding for further proceedings. (Id. at pp. 211, 241.)

Issue

What causation standard applies to a FEHA discrimination claim, and what is the effect of an employer’s proof that it would have made the same employment decision even absent any discriminatory motive? (56 Cal.4th at pp. 210–211.)

Holding

Reasoning

1. “Because of” requires substantial causation. The Court construed the FEHA’s operative phrase — that an employer may not act against a person “because of” a protected characteristic (Gov. Code, § 12940, subd. (a)) — to require “a causal link between the employer’s consideration of a protected characteristic and the action taken.” (56 Cal.4th at pp. 215, 231–232.) Rejecting both a bare “motivating factor” test and a strict “but for” test, it adopted an intermediate standard: the plaintiff must prove discrimination was “a substantial factor motivating” the decision. (Id. at p. 232.)

2. Why “substantial,” not merely “a,” motivating factor. Requiring substantiality, the Court explained, “more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision,” while still triggering the FEHA’s deterrent purpose when discrimination genuinely infects a decision. (56 Cal.4th at p. 232.) The Court added that it did “not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor.” (Id. at p. 229.)

3. Same-decision is not a complete defense. The City urged that proof it would have fired Harris anyway should defeat liability entirely. The Court disagreed. Given “the FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace,” a same-decision showing “is not a complete defense to liability.” (56 Cal.4th at pp. 211, 234–235.) Discrimination that is a substantial motivating factor is itself a statutory wrong, even if the same outcome would have followed. (Ibid.)

4. But it limits the remedy. The Court balanced deterrence against the principle that a plaintiff should not recover make-whole relief for a result that would have occurred anyway. Where the employer makes the same-decision showing, the plaintiff may not obtain “damages, backpay, or an order of reinstatement,” because those remedies presuppose that the discrimination caused the loss. (56 Cal.4th at pp. 211, 234–235.) The plaintiff may, however, obtain declaratory or injunctive relief “to stop discriminatory practices” and “reasonable attorney’s fees and costs expended for the purpose of redressing, preventing, or deterring that discrimination.” (Id. at pp. 211, 235.) Fee awards remain discretionary, with “reasonable[ness]” the touchstone. (Id. at p. 235.)

5. Instructional error and remand. Because the jury was told to find liability if discrimination was merely “a motivating factor,” without the substantiality requirement or the same-decision framework, the instructions were erroneous and the error was prejudicial on this record. (56 Cal.4th at pp. 238–241.) The Court therefore affirmed the reversal and remanded for proceedings under the correct standard. (Id. at p. 241.)

Significance

Harris is the controlling California authority on FEHA causation and mixed-motive remedies. It establishes the “substantial motivating factor” standard now embodied in the standard jury instructions (CACI Nos. 2500, 2507) and defines the limited but real consequences of an employer’s same-decision showing — a partial, remedy-limiting defense rather than a liability shield. The decision draws on, but deliberately departs from, the federal mixed-motive framework of Price Waterhouse v. Hopkins (1989) 490 U.S. 228 and the Civil Rights Act of 1991, charting an independent California path. It overlays the circumstantial-proof framework of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 and Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 whenever an employer asserts it would have acted the same regardless of any protected characteristic. See the Review’s coverage of the proof-framework line.

Key quotes

“[W]hen 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, backpay, or an order of reinstatement. But the employer does not escape liability.” (Harris, supra, 56 Cal.4th at p. 211.)

“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.” (Id. at p. 232.)

Read the full opinion (California Supreme Court — full text) →

Practice pointer

Open questions

How the same-decision showing interacts with non-termination adverse actions, with claims outside section 12940, subdivision (a) (e.g., retaliation or failure to accommodate), and with the scope of “reasonable” fees when only declaratory or injunctive relief is obtained, remains to be worked out case by case. Courts also continue to apply Harris’s substantial-motivating-factor standard at summary judgment, where its interaction with the Guz burden-shifting allocation is still being refined.