Preventing mixed motive employment discrimination cases

In a mixed motive case, the evidence shows that employer has taken adverse action for a combination of both legitimate and unlawful reasons. When a plaintiff in a Title VII case proves that a protected category played a motivating part in an employment decision, the defendant/employer may avoid a finding of liability only by proving by a preponderance of evidence that it would have made the same decision even if it had not taken the plaintiff’s protected characteristic into account.

Even then, however, the employer may still have liability, but the liability is limited to declaratory relief, certain injunctive relief, and attorneys’ fees and costs, rather than all of that plus reinstatement, back pay and damages.

Mixed motive losses are still worth avoiding

Knowing that the employer’s liability in a mixed motive case is limited is good news, but it may not be as good as it first appears. This is because the remedies that the plaintiff is still entitled to could be greater in some cases could be greater than actual damages. As such, the limitation of liability doesn’t give carte blanche to relax on anti-discrimination policy enforcement.

Employers should be sure to assess their risk levels. Even if employment actions are not being taken directly and obviously for discriminatory reasons, there may be enough evidence to prove a mixed-motive case. Here are some red flags that you might have a mixed-motive case on your hands:

• The decision-maker made some inappropriate comments, such as derogatory slurs, sexist jokes, etc.
• Employees outside the protected category (of the plaintiff) were treated differently.
• The adverse action looks as though it was based or partly based on protected conduct. An example might be an employee who was legitimately terminated for absenteeism, but some of the absences were due to pregnancy or disability. Another example is if the timing is suspicious, such as if the employee was terminated right after returning from protected leave or complaining about harassment—even if the real reasons for the termination are legitimate.

Preventing employment discrimination—Even mixed motives

“You don’t want to be in a situation where you’re dealing with a mixed-motive defense. You want to make sure that none of your business decisions are based upon any unlawful reasons.” Marc Jacuzzi warned in a recent CER webinar. But how?

Here are some practical strategies for avoiding a mixed-motive case that Jacuzzi outlined:

• If it is not work related, don’t consider it.
• Apply all rules and standards equally to everyone.
• Assume everyone wants to advance in the organization—overlook no one.
• Avoid decisions based on subjective feelings—make them on objective facts.
• Have anti-discrimination and anti-retaliation policies in place, and communicate them to your employees.
• Train everyone on these policies.
• If you have employees who may be protected but are poor performing, be sure to give clear instructions and warnings and explain all decisions to the affected employees.
• Always consider the employee’s side of the story before taking action—give them the chance to explain.
• Train your managers. To take steps to avoid discrimination/retaliation allegations, managers must first understand what situations can lead to those types of allegations.
• Have accurate and clear documentation of all employment decisions.

The above information is excerpted from the webinar “Avoiding Mixed Motives: Mixed Motive Discrimination in California Explained.” To register for a future webinar, visit CER webinars.

Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.