A California court of appeal recently held that employers may assert a so-called "mixed-motive" defense to discrimination claims under the state's Fair Employment and Housing Act ("FEHA"). In Harris v. City of Santa Monica, the plaintiff claimed that her former employer, the City of Santa Monica, terminated her because she was pregnant, in violation of FEHA. The city asserted that it terminated Harris for poor performance (of which there was significant evidence), and not because of her disclosure of her pregnancy one week prior to termination.

At trial, the city asked the court to instruct the jury that if the city had both discriminatory and non-discriminatory reasons for termination, the city would not be liable if the legitimate reason – i.e. Harris' performance problems - alone was sufficient to justify termination. The court denied the request and instead instructed the jury that the city was liable for discrimination if Harris' pregnancy was a motivating reason/factor for her termination. The jury found in favor of Harris and awarded her nearly $600,000 in damages and attorney's fees.

The court of appeal reversed and sent the case back for re-trial. The court held that, while the at-issue jury instruction did not expressly misstate the law, it was incomplete because it did not provide the city with a complete defense if the jury found that the city would have terminated Harris for poor performance even if she had not been pregnant. The court instructed the lower court to issue the city's requested jury instruction. Nevertheless, on re-trial, Harris will be allowed to argue that the city acted with discriminatory animus despite the significant evidence of performance problems, and that such animus unlawfully motivated its termination decision.

Had the city been unable to proffer objective and significant evidence of Harris' performance problems, it is quite likely that the court of appeal would not have disturbed the jury's verdict. This case is a further reminder of the importance of active and contemporaneous management of employee performance problems.