Client Alerts

"Mixed Motive" Proves Poor Defense for City

During her probationary period to become a city bus driver, a female employee racked up two preventable accidents, missed work without giving adequate notice twice, and was evaluated as needing "further development." After these incidents occurred, Harris told her supervisor she was pregnant. Shortly thereafter, the city decided to fire her along with other probationary employees who were deemed to be poor performers. Harris, in turn, sued the city alleging that she was terminated because she was pregnant in violation of FEHA. The case was tried to a jury. The jury found that the plaintiff’s pregnancy was a "motivating factor/reason" for her termination, and awarded her $178,000 in damages. The court also awarded over $400,000 in attorney’s fees.

The heart of the city’s defense was that there was a "mixed motive" for its employment decision. In a "mixed motive" case, both lawful and unlawful factors contribute to an employment decision. Once the employee establishes that an unlawful factor played a motivating or substantial role in the employment decision, the employer must prove that it would have made the same decision even if it had not taken the unlawful factor into account. Here, Harris claimed she was terminated because she was pregnant. The city argued that Harris’ performance problems justified her termination, regardless of whether she was pregnant.

The city appealed the verdict based on the jury instructions given by the trial judge. One set of jury instructions specifically includes a "mixed motive" defense. The instruction states in part, "If you find that the employer’s action … was actually motivated by both discriminatory and nondiscriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision." (BAJI Instruction No. 12.26.)

Instead, the court instructed the jury that the city was liable if Harris’ pregnancy "was a motivating factor" in the city’s decision to terminate her even if other matters may have contributed to the employment decision. (CACI Instruction No. 2500.) The new jury instructions were designed to improve the quality of jury decision making by writing instructions that are understandable to the average juror. However, the new instructions are supposed to be an accurate reflection of California law and should not undermine the viability of the city’s mixed-motive defense. The Court of Appeal found that the trial court erred in not instructing the jury properly and ordered a new trial.

The California Supreme Court granted review on the case which could greatly impact employers’ ability to defend themselves against discrimination cases filed under FEHA.

Harris v. City of Santa Monica (2010) 181 Cal.App.4th 1094