Mixed Motive Discrimination: Harris v. City of Santa Monica

The California Supreme Court's decision in Harris v. City of Santa Monica established a new standard of proof in mixed-motive discrimination cases and dramatically changed the remedies available in those cases. In a "mixed motive" case "there is no single 'true' reason for the employer's action."  The Court explained the dilemma facing a jury, asking, "[W]hat is the trier of fact to do when it finds
that a mix of discriminatory and legitimate reasons motivated the employer’s
decision?  That is the question we face
in this case." The court's answer to that question provides important practical guidance to lawyers and employers.

When the reasons behind an action are mixed, an employer will strive to establish that despite the mixed motivations, the legitimate business reasons would have dictated that it make the "same decision." But if illegal discriminatory reasons also exist, whatever their weight, how does a court reconcile finding no discrimination, which is, after all, against the law.

The Court had to decide between three possible standards, and in addition sort out other ancillary, but significant, issues. Ms. Harris argued that she should win, and collect damages, if she proved that some discriminatary intent was the "motivating factor" for the decision, even though other factors may have contributed. She did win in the trial court, and was awarded $177,905 in damages, most of which was for non-economic, emotional injury, and $401,187 in attorneys' fees.  

The City, on the other hand, asserted that she must prove that "but for" a discriminatory reason, she would not have been terminated, a very strict standard. The Court rejected both views, and selected a third standard, that discrimination may be established if it is proven that the discriminatory motivation was a "substantial factor" in the decision. But the Court did not stop there.

The City claimed that if the plaintiff could not establish the standard, whatever it is, it is relieved of all liability for discrimination, even though it necessarily is the case that some element of its motivation was discriminatory, and against the law. The Court could not accept this result and established not only the new standard, but also a new formulation of remedies uniquely limited to a "mixed motive" case. 

The court explained its ruling as follows:

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, where
appropriate, the plaintiff may be entitled to declaratory or injunctive relief.  The plaintiff also may be eligible for an
award of reasonable attorney’s fees and costs under section 12965, subdivision
(b).

Thus, in a mixed motive case if the plaintiff proves her case, but the employer establishes it that it would have made the same decision, albeit for legitimate reasons, the plaintiff cannot recover monetary relief, other than attorneys fees. The plaintiff may also obtain an injunction against further such discrimination and a judicial declaration of the employer's discrimination. The court found that the potential award of attorneys fees would also be a significant deterrent to employers.

The decision makes a signifcant change in California law in this form of discrimination case. But the court cautioned about what properly qualifies as a legitimate motive, emphasizing the requirement that it must have been a motivation in place at the time of the discriminatory event, i.e., there is a signficant evidentiary difference between what led to "making" a decision and what might have "justified" a decision.

This distinction is of  important practical value, and, along with other procedural implications affecting employment litigation, will be the subject of the next blog posting.

Stephen C. Gerrish, Employment Group