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Even If Motivated By Discrimination, Employer Not Liable For Damages If It Can Prove It Would Have Terminated Employee Anyway

What happens when an employer terminates an employee based on a “mix of discriminatory and legitimate reasons”? The California Supreme Court answered that question last week in Harris v. City of Santa Monica. It held that when unlawful discrimination is a substantial factor motivating the termination, the employer is not liable for damages if it can prove that it would have made the same decision absent such discrimination.

That doesn’t mean employers get off scot free, however. The Court still held that an employer is subject to declaratory or injunctive relief to stop its discriminatory practices. Also, a plaintiff-employee may recover attorney’s fees and costs as the prevailing party.
Under the facts of Harris, the plaintiff was a bus driver, although apparently not a very good one. During her initial training period, the plaintiff had an accident resulting in damage to the bus she was driving. Her employer deemed the accident “preventable.” Shortly after completing her initial training period, the plaintiff had a second preventable accident – this time, she sideswiped a parked car and tore off its side mirror. These two incidents were then followed by two “miss outs” when the plaintiff did not come to work and failed to give her supervisor at least one hour’s warning. As a result of the second “miss out,” a manager told an assistant director that the plaintiff was not meeting the city’s standards for continued employment.
At or near the time that decision was made, the plaintiff told another manager that she was pregnant. She claims that when she relayed that information, her manager reacted with seeming displeasure, exclaiming “Wow. Well what are you going to do? How far along are you?” He also asked for a note from her doctor clearing her to work. Four days later, when the plaintiff turned in her doctor’s note, the manager who asked for it attended a supervisors’ meeting and was told that the plaintiff was on a list of drivers who were not meeting standards. The plaintiff was fired shortly thereafter.
The plaintiff sued, claiming she was fired because she was pregnant. During trial, the jury found that the plaintiff’s pregnancy was “a motivating factor” in the termination and awarded almost $180,000 in damages. The plaintiff was also awarded over $400,000 in attorney’s fees. However, an issue arose as to whether the trial court gave the jury the proper instruction on the law. The trial court had told the jury that it could award damages if the plaintiff’s pregnancy was merely “a motivating factor” in the termination.
The California Supreme Court held the jury was not instructed properly. It should have been instructed that in “mixed motive” cases, where the termination is based on both discriminatory and legitimate reasons, the employer is not liable for damages if “the legitimate reason, standing alone, would have induced it to make the same decision.” Nevertheless, if discrimination was a “substantial factor” in the termination, the employer may still be subject to declaratory and injunctive relief, and therefore attorney’s fees and costs. Such relief is proper because of the importance in making sure that workplaces remain discrimination free.
What this decision means is employers must still strive to keep the workplace free from discrimination. Failing to do so can be costly if the employer must pay attorney’s fees and costs to a prevailing plaintiff in addition to any equitable relief that may be ordered. That said, employers have an important defense where the plaintiff would have been terminated regardless of any discriminatory intent.