The California high court is deliberating the standard of proof required to prove employment discrimination in “mixed motive” cases under the California Fair Employment and Housing Act. Harris v. City of Santa Monica, No. S181004 (Cal. Dec. 4, 2012). In these cases, the employer asserts it would have terminated or taken other adverse action against an employee, regardless of any alleged discrimination. At the oral argument, the California Supreme Court justices appeared divided regarding the appropriate standard, questioning both the employer’s argument that “but-for” causation is required to impose liability and the employee’s argument that liability may be imposed if discrimination is “a motivating factor” in the employer’s decision. Some justices suggested that liability could be imposed if the discrimination was a “substantial factor” in the decision. 


In October 2004, the City of Santa Monica hired Wynona Harris as a bus driver trainee. During her probationary period, Harris had two “preventable accidents” and failed to report for her assigned shift. Harris received a three-month written performance evaluation with a “further development needed” rating. One month after her evaluation, Harris again failed to report for her assigned shift. Thereafter, the City’s Transit Services Manager, Bob Ayer, determined that Harris did not meet the City’s standards for continued employment and decided to terminate her. About one week later, Harris told her immediate supervisor that she was pregnant. Two days later, Ayer terminated Harris. Harris sued the City for pregnancy discrimination. The case went to trial, with a jury instruction that the City would be liable if Harris’s pregnancy was a “motivating factor” in its termination decision.

The jury returned a verdict for Harris, and the City appealed. It argued the trial court’s refusal to give the mixed-motive instruction prejudiced the City. The Court of Appeal agreed with the City and remanded the case for a new trial. The California Supreme Court granted review to address the standard of proof in mixed motive cases under the FEHA. (For additional details regarding this case, please see California Court: Pregnancy Discrimination Case Calls for Mixed-Motive Jury Instruction.)

Compromise Standard

The City’s attorney argued before the Supreme Court that the City should not be held liable unless discrimination was the “but-for” cause of the employment decision. However, Justice Goodwin Liu indicated that such a rule could leave “discrimination in the air.” On the other hand, Harris’s attorney urged that the correct standard of proof was whether discrimination was “a motivating factor” in the decision, the standard under the FEHA for housing discrimination. In response, Justice Kathryn Werdegar and Justice Carol Corrigan commented that, under the “motivating factor” standard, a pregnant woman could never be fired, no matter how incompetent, without exposing an employer to litigation. Further, Justice Liu questioned how jurors could assess damages in such a situation, separating the emotional distress from the alleged discrimination from the emotional distress of losing one’s job for a legitimate reason. 

Instead, Justice Liu and Justice Joyce Kennard suggested adopting the standard used in mixed motive cases under Title VII of the Civil Rights Act. Under that standard, to establish liability against an employer, the employee must show the discrimination was a “substantial factor” in the employment decision. Justice Liu and others also suggested limiting the remedies in mixed motive cases to non-monetary damages, such as declaratory and injunctive relief. A decision is expected within 90 days of the oral argument, by March 4, 2013.