The California Supreme Court recently clarified the defenses available to employers defending against claims of discrimination. In Harris v. City of Santa Monica, No. BC341469 (Cal. Feb. 7, 2013), the court ruled that, if a discriminatory motive was a substantial factor in the decision to terminate an employee, an employer can still cut off all damages by proving that, even in the absence of any discriminatory motive, it would have made the same decision to terminate the plaintiff. In theory, the Harris decision will provide employers with a tool to cut off damages in claims of discrimination where an employee was clearly headed for termination. The court also held, however, that when a jury finds that the termination was substantially motivated by discrimination, the employee may still seek and receive declaratory and injunctive relief, and an award of attorneys’ fees. Because of the availability of attorneys’ fees and declaratory and injunctive relief, the Harris decision may result in more cases going to trial.
Articles Discussing The California Fair Employment And Housing Act (FEHA).
Legal Alert: California Supreme Court Issues “Mixed Motive” Decision Favorable to Employers
Executive Summary: According to a new California Supreme Court opinion, once an employee claiming discrimination demonstrates that a discriminatory reason for his or her termination substantially motivated an adverse employment decision, the employer is entitled to show that a legitimate, non-discriminatory reason would have led it to make the same decision. If the employer is able to demonstrate that, notwithstanding any discriminatory reason for the decision, it was actually motivated by a non-discriminatory reason, the employee is not entitled to monetary damages, back pay or reinstatement, but may still be entitled to an injunction or an award of attorneys’ fees and costs.
California Supreme Court Requires Discrimination as Substantial Motivating Factor in Mixed Motive Cases, Limits Damages Available to Employees
To establish liability in “mixed motive” employment discrimination cases under the California Fair Employment and Housing Act (FEHA), the employee must show that unlawful discrimination was a substantial factor motivating the adverse employment decision, the California Supreme Court ruled. Harris v. City of Santa Monica, No. S181004 (Cal. Feb. 7, 2013). However, if the employer proves that it would have made the same decision absent such discrimination, a court may not award damages, back pay, or order reinstatement, but the employee may be entitled to declaratory and injunctive relief, as well as attorney’s fees and costs.
California Supreme Court Hears Oral Argument in Mixed Motive Case
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.
New Provisions of California’s False Claims Act
California Governor Jerry Brown recently signed into law AB 2492, amending California’s False Claims Act to better conform it to requirements of the federal False Claims Act.1 In addition to amending definitions of “conduct” that would fall under the provisions of the new law, civil penalties are also increased for each violation. The new changes also make it easier for employees who themselves violate the Act to file suit against an employer based on the employee’s prohibited conduct and be awarded a share of the proceeds of the action. Courts can, however, reduce the award based on the employee’s conduct.
California Law Limiting Employee Arbitration Agreement Waivers Cannot Stand after Concepcion, Court Finds
The Federal Arbitration Act preempts California law disfavoring the enforcement of a class action waiver in employee arbitration agreements, the California Court of Appeal has ruled. Iskanian v. CLS Transp. Los Angeles, LLC, No. B235158 (Cal. Ct. App. June 4, 2012). The Court noted the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), overruled California law. (For more information, please see our article, Supreme Court Strikes Down California’s Prohibition of Class Action Waivers in Arbitration Agreements.) The Court also ruled the FAA preempted the plaintiff’s claims under the California Private Attorney General Act (“PAGA”). Accordingly, it affirmed an order compelling arbitration and dismissing the employee’s class claims for alleged Labor Code violations and upheld a class action waiver.
Partner Could Sue Partnership for Retaliation under FEHA, California Appeals Court Rules
A physician-partner in a medical practice could assert a retaliation claim under the California Fair Employment and Housing Act, the California Court of Appeal has held, reversing a judgment in favor of a medical partnership. Fitzsimons v. California Emergency Physicians Med. Group, No. A131604 (Cal. App. Dist. 1 Div. 3 May 16, 2012). The physician-partner reported alleged harassment of female employees within the practice while she served as the practice’s medical director. The Court ruled that, because the FEHA protects “any person” from retaliation, the physician could assert a claim for retaliation, even though, as a partner, she could not sue the practice for employment discrimination.
California DFEH’s New Procedural Regulations Will Facilitate the Claims Process for Employees
In early 2010, California’s Department of Fair Employment and Housing (DFEH) proposed a series of new procedural regulations to govern the receipt, investigation, and conciliation of administrative complaints received by the department. Following a series of public hearings and a public comment period, the final regulations now have been approved by the Office of Administrative Law and filed with the Secretary of State. They will go into effect on October 17, 2011, and are codified at Title 2, California Code of Regulations, sections 10000 through 10066.
California Court Allows “Me Too” Evidence to Show Employer Bias
In a potentially dangerous precedent for employers, a California appeals court has ruled that an employee claiming employer sexual or racial harassment can prove the employer’s discriminatory intent by showing the employer harassed other workers, even though such harassment occurred outside the complaining employee’s presence. Pantoja v. Thomas J. Anton, et al., No. F058414 (Cal. Ct. App. Aug. 9, 2011). The Court found the lower court improperly excluded evidence of the employer’s alleged gender bias in the form of harassing activity against women employees other than the plaintiff. Although the excluded “me too†evidence related to harassing activity that occurred outside the plaintiff’s presence — and even at times when she was not an employee — it should have been admitted as evidence of a discriminatory or biased intent or motive under California Evidence Code § 1101(b), the Court of Appeal concluded. The lower court’s exclusion of the evidence on the grounds it was propensity or character evidence under Evidence Code § 1101(a) therefore was prejudicial.