On February 7, 2013, the playing field tilted ever so slightly in the employer’s favor, in the California Supreme Court case of Harris v. City of Santa Monica. 2013 Cal. LEXIS 941 (February 7, 2013).
A City bus driver, Wynona Harris, alleged she was fired by the City of Santa Monica because of her pregnancy, in violation of California’s Fair Employment Housing Act, which prohibits discrimination, including discrimination based on sex, in employment. The City claimed Harris had been fired for poor job performance. The City lost the case at trial and its appeal followed. The Court of Appeal reversed the trial court’s decision, holding that the trial court’s refusal to give a jury instruction requested by the employer was reversible error. The California Supreme Court affirmed in part. It held that when a jury finds discrimination was a substantial factor in the employer’s decision to terminate the employee and the employer also proves it would have made the same decision even absent such discrimination, the Court may not award damages, backpay, or even an order of reinstatement. The prevailing plaintiff’s remedy is to request injunctive relief, in order to stop the discriminatory practices, and to request an award of reasonable attorneys’ fees and costs. That’s it. Potentially, that’s huge for employers stuck with the bill for the alleged misconduct of their managers and supervisors. In fact, it’s leverage that is certain to provide greater incentive to direct these cases to mediation and settlement.
This decision may have just reversed forty years of case precedent in California, which previously followed the three-stage, burden-shifting test described in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 and its progeny. Previously, the plaintiff had the initial burden to establish a “prima facie” case of discrimination: Plaintiff was a member of a protected class (age, sex, disability, veteran status, for example); and, the employer took an adverse employment action against this employee allegedly because of the employee’s protected status. This created a presumption of discrimination. The employer could rebut that presumption by producing evidence that its action was taken for legitimate, non-discriminatory reasons. If the employer met that evidentiary burden, the presumption of discrimination disappeared. To prevail, the employee then had to show that the employer’s evidence and explanation was but a pretext to discriminate.
The entire, analytical framework of Green was predicated upon the simplistic assumption that there is only one, count em, one explanation for any employment decision. It’s either discrimination or it’s not. Black and white, that’s it. The only problem with this analytical framework is that it doesn’t reflect reality. As we know, real life is much more complex. Often, an adverse employment decision is based on a legitimate, business rationale. Unfortunately, there may be occasion where that same decision is influenced by other, less defensible factors. Green concluded any taint infected the entire process, and precluded a legitimate defense to discrimination. The Harris case just changed all that. Now, an employer has the opportunity to present a mixed motives defense to discrimination.
Although this case involved sex discrimination, the same legal analysis applies to any discrimination claim arising under California’s Fair Employment and Housing Act [FEHA]. This defense will be available to any employer who is subject to any claim of employment discrimination arising under the FEHA.
If a judge or jury agrees that, even absent discrimination, the employer would have made the same employment decision for legitimate reasons, the plaintiff’s damages are cut off. No pain and suffering, no lost wages. It becomes a pyrrhic victory for the Plaintiff. Plaintiff and counsel will be left to split attorneys’ fees between them. That brings us to the point of this article: How this benefits you, the Employer. In short, it may give you a path out of the litigation wilderness.
New Options for Employers
First, for those employers currently defending a claim of employment discrimination, you may want to discuss how this new, legal defense may impact your case. It may be important for defense counsel to incorporate this theory as part of your case, starting with a proposed, amended Answer to the Complaint to include this defense.
Secondly, if you seek an early resolution to litigation, you just gained leverage if you choose to mediate your dispute. Clearly, incorporating this defense, if applicable, impacts the overall value of plaintiff’s case in a significant way. It should help you bring that final number down significantly.
Finally, to prevent a potential claim or lawsuit, this case again demonstrates why it is important for your organization to conduct a thorough, pro-active investigation of any complaint of discrimination. Not only to you wish to remedy and resolve these complaints, if possible, in a timely manner to avoid litigation. You also wish to gather your facts to make certain that any possible rationale for the decision in question is properly documented and preserved for a future defense to litigation. Your reward may be the elimination of all money damages to the plaintiff, even if your organization is found liable. That is definitely a silver lining to the dark cloud of litigation.