The California Supreme Court's Harris decision, discussed in our last post, not only clarifies the standard of proof and alters remedies available to an employee in mixed-motive cases, it provides guidance and raises questions on several practical aspects of employment law and litigation.
An Employer has the burden of proving that the same employment decision would have been made in the absence of any discriminatory motivation. If the jury has found that mixed motives were in play, making a "same decision" showing will preclude the recovery of damages. So, how to prove this? It is vital to be able to prove with unambiguous testimony that the same decision would have been made at the time the actual decision was made. The court warned that this is NOT an invitation to show that the same decision would have been justified. Employers should be able to show that the legitimate reason for the decision was communicated to the employee and was a documented, serious issue that was legitimately addressed. The employer should not avoid advising the employee of this reason; not doing so may foreclose later reliance on the the "same decision" defense. Documentation and clear communication remain the best policy, in practice, and the best proof, in court. The court relied on one case that made this clear, stating, "…the employer cannot make a same-decision showing 'by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decison.'" A history of poor performance will do no good if it was not the motivating reason; an element of proving this is that it was communicated, and documented.
Of practical significance to attorneys is the court's rejection of two standard California jury instructions, CACI 2500 and BAJI 12.26. Both are now incorrect statements of the law and will need to be corrected, in particular CACI's reliance on a lesser standard of proof, and both instructions' statement that proof of the legitimate reason for the decision precludes liability of any kind. Presumably the editors of standard instructions will correct this. Otherwise, special instructions based literally on Harris should be crafted.
The court also established a new "same decision" affirmative defense, which must be pleaded by the employer defendant in its answer. The court specifically held that "…if an employer wishes to assert the defense, it should plead that if it is found that its actions were motivated by both discriminatory and nondiscriminatory reasons, the nondiscriminatory reasons alone would have induced it to make the same decision." The court made clear that the employer can assert both a traditional "legitimate non-discriminatory reason" defense, which assumes no mixed-motive, and would provide a complete defense to liability, if proven, and the somewhat inconsistent "same decision" defense, which assumes mixed-motivations" and leaves the employer open to injunctive and declaratory relief, and attorneys fees.
This inconsistency, combined with potential differing remedies depending on whether the jury finds a mixed-motive or not, leads to another practical, procedural choice: should the mixed vs. single motive aspect of the case be bifurcated and tried first the jury, before the damages/remedy section of the case. Depending on the facts and strategic implications, it will be important to decide whether to obtain a finding on the mixed-motive issue, before the damages/remedies phase, potentially limiting the relief available to the plaintiff and the nature of the relevant testimony. The significant difference in available remedies could well justify bifurcation, especially when coupled with an offer of proof showing that the legitimate reason was, in fact, the motivating (and communicated) reason.
These procedural and practical aspects of Harris will undoubtedly be explicated with time.