Proving discrimination cases by the standard of a “substantial motivating factor” is now clearly the law of the land – at least in the land of California. Let’s look at why this is so, and what it means.
First, in May 2013, the California Supreme Court declared that the standard of “substantial motivating factor” would replace the previously accepted “a motivating factor” in mixed motive cases under California law. Harris v. City of Santa Monica, 56 Cal.4th 203 (2013). (Mixed motive cases are cases where the employee proves there was discrimination, but the employer proves it would have made the same decision even without this discriminatory animus).
Although the language in Harris was broadly stated, it wasn’t one hundred percent clear whether this standard applied to all discrimination cases under California law, or just mixed motive cases. Along comes Alamo v. Practice Management Information Corporation (2013) 219 Cal.4th 466, holding that the Harris decision applies to almost all employment discrimination cases, thus hammering a nail in the coffin of “a motivating factor” standard under California law. In other words, in an employment discrimination case, although discrimination need not be the sole reason for the wrongful act – it must be a “substantial motivating factor”.
We who represent employees never like it when a court gratuitously makes the standards that govern employment discrimination cases more difficult to meet. Hence, it is important to analyze what this standard will mean as a practical matter. First, there is prior case law that defines “substantial motivating factor” in a way that clarifies that this standard really shouldn’t be more onerous. See for example, Rutherford v. Owens-Illinois, Inc., (1997) 16 Cal.4th 953, 969 (substantial motivating factor is more than an infinitesimal or theoretical reason). Second, for purposes of summary judgment (i.e. a judge deciding whether a case should go forward to a jury) hopefully judges will have the general intelligence to see that – since the question of discrimination is really for the jury – this slight change in standard should not impact the judge’s decision. Third, in terms of a jury’s decision, it is a bit difficult to think that jurors will find for an employee if they don’t think the discrimination was substantial.
Now, however, whenever you file a discrimination claim in California, it is worth considering whether you should also pursue a federal claim, in addition to the state claims. This is because federal claims for race, religion, sex or national origin discrimination will be governed by “a motivating factor” standard, because that standard is written right into the statute. USC §2000e-2. Of course, in doing so, you may find yourself removed to federal court . Thus, the pros and cons of federal versus state court have to be carefully balanced against the more liberal causation standard.
I’m not happy that the California courts did this. It seems absurd to judicially make the standard more strict than the federal statutory standard, but let’s keep our fingers crossed on the day-to-day impact of this.
November 1, 2013