California Supreme Court To Review Mixed Motive Defense Under FEHA
On April 22, 2010, the California Supreme Court granted review of Harris v. Santa Monica, an important case that may permit California employers, like their counterparts in most other states and under federal law, to use a “mixed motive” defense against claims of discrimination and retaliation. In Harris, the plaintiff claimed that she was fired because she was pregnant. The City of Santa Monica wished to put on the defense that Harris would have been fired for poor performance regardless of her pregnancy due to her less than impeccable record of bus accidents, unexcused absences and unsatisfactory performance review. Santa Monica sought an order that would have required Harris to prove that her protected trait, pregnancy, was the motivating factor behind the termination as opposed to being one of the many things that her supervisors discussed when the termination decision was made. The trial court sided with Harris but the Second District Court of Appeal agreed that defendants should be permitted to put on a “mixed motive” defense. Now, the Supreme Court will have the opportunity to provide employers with a more complete defense to claims of discrimination and retaliation under California law. We will continue to post developments on this case.