California Labor &
Employment Law Blog
Nov. 3 2009

“Mixed-Motives” Defense Remains Available to California Employers in Discrimination Cases

Topics: Court Decisions, Discrimination, Harassment & Retaliation

A California Court of Appeal recently held that the"mixed-motive" defense remains good law for California employers. In Harris v. City of Santa Monica, thePlaintiff was abus driver employed by the City as a "probationary employee," an at-will position. The Plaintiff had several documented performance issues, including preventable accidents and reporting late to work, during her at-will probationary period.After the City hadconducted an investigation regarding the Plaintiff's performance issues, the Plaintiff's supervisor, in a chance encounter,noticed that the Plaintiff's shirt was untucked and asked her to tuck it in. The Plaintiff then informed her supervisor that she was pregnant, and, according to the Plaintiff's testimony, her supervisor reacted to the news with seeming displeasure, stating: "Wow. Well, what are you going to do? How far along are you?" Her supervisor later askedher to get a doctor's note clearing her to continue to work, whichthe Plaintiff then provided with somelimited work restrictions. Thesame day the Plaintiff gave her supervisor the doctor's note, her supervisor attended a supervisors' meeting and received a list of probationary drivers who were not meeting standards for continued employment. The Plaintiff was on the list. Two days later,the Manager who had conducted the investigation intothe Plaintiff's performance issuesfiredthe Plaintiff, who then sued the City alleging pregnancy discrimination.

The City denied that its termination decision had anything to do withthe Plaintiff's pregnancy.

The case was tried to a jury, which awarded the Plaintiff almost $200,000 in damages, plus approximately $400,000 in attorneys' fees.At trial, the Cityhad asked the trialcourt to instruct the juryon a "mixed-motives" defense. The "mixed-motives" defense essentiallystates that, even if the jury finds that both discriminatory and legitimatenon-discriminatory reasons were considered in deciding to terminate the Plaintiff's employment, that if the legitimate reasons standing alone would have induced the employer to make the same decision, the employer may prevail. The trial court refused to give the instruction, reasoning that the Plaintiff's at-will employment was not relevant, since she conceded she was at-will but was claiming she was fired for discriminatory reasons and that the performance issues were pretextual.However, the Court of Appeal reversed, explaining that"mixed-motive"is a viable defense and remains good law available to employers in the right circumstances. The Court of Appeal further held that an employer does not need to plead mixed motive as an affirmative defense, since it does not involve a "new matter" and is instead already put at issue by the plaintiff's claims.The case was reversed and remanded for retrial based on the instructionalerror, with the Court of Appeal noting that the Plaintiff had offered sufficient evidence for the trier of fact to determine she was fired because she was pregnant, but the City's competing evidence regarding the Plaintiff's performance issues, if believed and with the appropriate mixed-motive instruction, might also have prevailed notwithstanding possible consideration of the Plaintiff's pregnancy.

The decision preserves the "mixed-motive" defense for employers in cases where there remains an argument that, notwithstanding possible consideration of protected characteristics or activity, the employer may prevail if it can demonstrate, by a preponderance of the evidence, that it would have nonetheless made the same decision based on legitimate non-discriminatory reasons.This case highlights the continuing importance of at-will employment and preserves the admissibilityand consideration ofrelevant defenses, arguments and evidence in the trial of such cases to demonstrate that, even when protected characteristics are possibly considered, an employer's legitimate reason for an employment decision remainsa critical factor in evaluating claims of discrimination.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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