Proving retaliation on the part of an employer is not always cut and dry. In fact, some retaliation cases have made it all the way to the Supreme Court owing to the ambiguity of what is required to prove such a case.
At the national level, the Court has ruled differently (in terms of what proof is required) in cases of discrimination versus cases of retaliation, even though both are covered under Title VII. In short, the Court's rulings have provided that cases of discrimination only need to show that the discrimination occurred; they do not need to show that there were no other factors at play. In other words, the Supreme Court has ruled that in the cases of discrimination, it is a violation of Title VII even if there are other, non-discriminatory reasons for the action at hand. So if the discrimination can be proven, Title VII has been violated, even if the employer claims they had additional reasons for taking the action in question.
In cases of retaliation, however, the Court has taken a stricter stance. For retaliation cases, the Court has ruled that the retaliation must be the only reason for the action in order for the action to violate Title VII. In other words, the Court has ruled that claimants must prove that the employer would not have taken the action but for retaliation purposes (called the "but for" causation).
This is a very strict hurdle to jump because if there are other contributing factors, it can be argued that the action would have been taken anyway—even if the retaliation is indeed a factor.
Retaliation claims in California: How does it differ?
Is it the same standard in California? Unsurprisingly, no, it is not.
California law provides much broader protections against retaliation than Title VII. An individual who sues for retaliation under California law need only prove that the exercise of protected activity was a motivating factor in the adverse employment action, explained Patricia Eyres noted in a recent CER webinar. (This is true under both FEHA and California case law providing remedies for retaliation).
As such, they do not have to prove "but for" causation, only that the retaliation did occur. The burden shifts to the employer to prove that they would have indeed taken the same action even without the illegal motive at play.
Harris vs. City of Santa Monica
The recent case where this was clarified was a harassment case: Harris vs. City of Santa Monica. The California Supreme Court said that in a situation where there were multiple reasons – such as firing someone for disciplinary reasons, but also for an illegal reason – then if there is one that taints the whole decision, then the employer must prove that they would have taken the adverse action with only the legal reasons at play. It differs from the previous cases because in California the employee no longer has to prove that the sole cause for the adverse action was retaliation.
The net results are mixed as well:
California's Supreme Court unanimously ruled that an employer can establish a "mixed-motive" defense to a FEHA discrimination claim, but such a defense, if accepted by a jury, is not absolute. (The essential premise of a mixed-motive defense is that an employer had a legitimate reason for taking an adverse action against an employee, which standing alone would have induced the employer to take the action it did).
The Supreme Court concluded that if an employer can make such a showing, the employee cannot be awarded damages for back pay, or an order of reinstatement, even if unlawful discrimination was a substantial motivating factor for the employer's action. However, the employer can still be subjected to a court order directing it to stop its discriminatory practice and to pay the worker's attorney fees and costs.
What does this mean in practical terms? Here's an example: If the employer can prove that it would have fired the employee in question even if he or she had not been in a protected class, then the former employee cannot receive money damages. However, he or she can still recover court costs and attorney fees.
The above information is excerpted from the webinar "Supreme Court Roundup for California Employers: The Latest Labor and Employment Law Rulings Explained." To register for a future webinar, visit CER webinars.
Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers' comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.