High Court Unfairly Favors Employer in Murky Mixed Motive Case

For years now in California, juries have been instructed that a plaintiff in an employment discrimination case under California law must prove that discrimination was “a motivating reason” or “a motivating factor” in the wrongful employment decision. See, for example, Mixon v. Fair Employment & Housing Commission (1987) 192 Cal.App.3d 1306. This has been essential black letter law in California’s fight against discrimination, and was incorporated into standard jury instructions given in most cases throughout California. See, for example, Judicial Council of California, Civil Jury Instructions, No. 2500.

Although federal law for a while has gone through several iterations of a judicially carve out for employers (a “free day for discrimination” type of defense) called a mixed motive defense, our California state law has not. At times federal law gave employers a free ride where an employer discriminated, but could prove that it would have taken the same action anyhow. Price Waterhouse v. Hopkins (1989) 490 U.S. 288. That law was amended by statute, splitting the baby, so that there is a cause of action in this situation but damages are limited to injunctive relief and attorneys fees, which is not much solace to the employee who faced this discrimination. 42 U.S.C. Section 2000e-5(g)(2)(B).

The California Supreme Court just made a mixed up jumble of this mixed motive law in Harris v City of Santa Monica (2013) 13 C.D.O.S. 1516. In a somewhat tortured analysis, it slopped and slid through the law, without a lot of clarity as to what exactly are the changes it intended to make. Its holding was and should be limited to a mixed motive case – i.e. a case where the employer can prove both illegitimate (discriminatory) and legitimate reasons motivated the decision. In that case it held that a plaintiff must prove that discrimination “was a substantial motivating factor” in the decision, the employer must then prove that it would have made the same decision in any event, and if so, the plaintiff is entitled to only injunctive relief and attorney’s fees and costs, as with federal law.

However, when repeated that a plaintiff must prove that discrimination “was a substantial motivating factor”, it left this standard floating out there, possibly suggesting it meant to apply this newly created standard to all cases, not just mixed motive cases. Why would the California Supreme Court do that? It relied on law related to causation, but the standard California jury instructions already state that the conduct “was a substantial factor in causing plaintiff’s harm” so the jury already knows that. CACI 2500(6). And when the Court describes what “a substantial motivating reason” is, perhaps it isn’t any different that “a motivating reason”, but who can tell based on this opinion? The opinion promotes lack of clarity instead of providing clarity! Add mud and stir, so thanks a lot, Supremes!

Jody LeWitter
February 15, 2013