When an employers motive are wrong and right

California law prohibits an employer from taking an adverse action against an employee “because of” any of several factors, including race, religion, age, sex, disability or medical condition. Someone who believes that he or she faced such employment discrimination may sue an employer and seek various remedies.

One issue that may arise in such cases is a so-called “mixed-motive” actions by the employer. This means the employer had a combination of reasons for taking action against an employee, some of which were proper and some of which were not. The California Supreme Court recently addressed this question in Harris v. City of Santa Monica and, more specifically, what remedies are available to the plaintiff when the employer can show both discriminatory and non-discriminatory motivation.

The plaintiff in Harris was hired by the City of Santa Monica to be a bus driver for the city’s bus service. During her training, she was involved in what the city believed was a preventable (albeit minor) traffic accident. She passed her training and became a probationary driver. During her first three-month probationary period, she was involved in another minor accident that the city also believed was preventable. She subsequently missed two shifts without proper notice over the course of approximately two months. Prior to the second absence, she received a performance evaluation saying that some improvement was needed. About two months after the second absence, she confided in her supervisor that she was pregnant. Her supervisor seemed unhappy by this news. The supervisor attended a manager’s meeting a few days later, and the plaintiff was on a list of probationary employees who were not meeting expectations. The plaintiff was terminated two days later.

She later sued the city, alleging that her termination was based on her pregnancy and therefor improper (California law considers pregnancy to fall under “sex” for the purposes of employment discrimination). The city’s argument was that it had legitimate, performance-related reasons for discharging her. The question before the California Supreme Court was whether the plaintiff could recover damages in such “mixed-motive” cases.

A large part of the court’s discussion was what, specifically, the words “because of” in the California statute mean. The court found three possibilities: (1) that the discrimination must be the exclusive reason for the discharge, (2) discrimination was a substantial factor, or (3) that discrimination was simply one motivation among several.

Ultimately, the court’s conclusion was that if a jury finds that (1) discrimination was a “substantial” part of the reason for termination, and (2) the employer would have discharged the employee even without the discriminatory part, the plaintiff cannot receive back pay, damages, or reinstatement. The plaintiff may still receive other kinds of relief, however, including declaratory (meaning the court ruling that the employer acted improperly), an injunction against the employer’s further discrimination and attorney’s fees. The court noted also that forcing the employer to incur its own costs of litigation (in addition to any paid to the plaintiff) is in and of itself a punishment for improper conduct.

These cases are extremely fact-specific, and require an experienced attorney to ensure that the necessary facts are made available. If you have faced what you believe to be improper conduct by your employer, you should contact a lawyer in your area right away.

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