In Harris v. City of Santa Monica, — Cal. — (Feb. 7, 2013), the California Supreme Court held that under the Fair Employment and Housing Act, “when 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.  In light of the FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices.  In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.”

In this case, the plaintiff worked for several months as a bus driver for Santa Monica’s Big Blue Bus.  During her employment, the City documented certain performance problems, but it was not until six days after the plaintiff informed her boss that she was pregnant that the company fired her.  At trial, the City asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives for the plaintiff’s termination, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same termination decision.  The trial court refused the instruction, and the jury returned a significant verdict for the employee.

On appeal, the Supreme Court stated that “[r]equiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply 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.  At the same time . . . , proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.”  The Court further stated that as to the issue of remedies upon the successful assertion of a “mixed-motives defense,” a jury may preclude an award of economic and noneconomic damages to the plaintiff, but the court may grant injunctive and declaratory relief as well as attorneys fees to the plaintiff.

Ultimately, the Court stated that “[i]n light of today‘s decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer‘s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages.  The trial court on remand should determine in the event of a retrial whether the evidence of discrimination in Harris‘s case warrants a mixed motive instruction.”

What does this mean for the future of employment lawsuits?  It is very possible that Harris‘s impact will be only a limited one.  While Harris may further discourage employee rights attorneys from taking on cases where the evidence of discrimination is tenuous and the employee has a significant history of performance problems, it will likely have little impact where an employee is able to produce persuasive evidence of discrimination because juries are probably less likely to simultaneously find that discrimination was a substantial factor for an adverse employment action and also believe the employer’s stated “legitimate” business reason for the adverse action.  In addition, the threat of liability for attorneys’ fees–often one of the biggest motivating forces for settlement–may continue to drive early resolution of these cases.  Harris also leaves several unanswered questions, including whether punitive damages are recoverable where an employee establishes discrimination but the employer establishes that they would have made the same decision anyway for non-discriminatory reasons as well as the scope and extent of the declaratory and injunctive relief that may be awarded to a prevailing plaintiff.


Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at to learn more about us.

Polina Bernstein

Polina Bernstein

Polina Bernstein founded Bernstein & Friedland, P.C. in 2009 and is lead litigation counsel at the firm.

Diana Friedland

Diana Friedland

Diana Friedland is a partner at Bernstein & Friedland, P.C. Her practice focuses on employment litigation and counseling.

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