Recent rulings by both the California and U.S. Supreme Courts have changed how employers need to approach so-called "mixed-motive" cases, where employers need to understand their potential liability in making hiring or firing decisions about employees who may be in position to bring legal action for employment discrimination.
Let's take a look at the basics of the employment discrimination laws, and then review the idea of mixed motive cases and California employer liability.
Employment Discrimination 101
What constitutes employment discrimination? It involves taking an adverse employment action against someone based on a protected characteristic.
What are the protected categories? Under Title VII, these categories are protected:
- Race
- Religion
- Color
- National origin
- Gender
So, for example, an act of employment discrimination might mean denying someone a promotion simply because they were not born in the U.S.
Other federal and California laws further protect individuals from discrimination based upon:
- Religious practices (such as grooming and dress)
- Ancestry
- Physical disability
- Mental disability
- Medical condition
- Genetic characteristic
- Marital status
- Registered domestic partner status
- Veteran status
- Political affiliation
- Sex (including pregnancy, childbirth, or related medical condition)
- Sexual orientation
- Gender identity
- Age (40 and over)
- Arrest record
- Workers' compensation
- Citizenship status
- Lifestyle issues (i.e. lawful activity on personal time away from work)
Remember that the law continues to evolve and change. It gets updated, so be sure to check the latest statutes.
"Discrimination has to be based upon a protected category. If it's not a protected category, then it is simply just not discrimination." Marc Jacuzzi explained in a recent CER webinar. Taking other adverse actions may still be counter to the company code of conduct or other company policies, but it's not illegal discrimination under Title VII.
Proving employment discrimination versus mixed motive in California
What does an individual employee have to show to prove discrimination in court? Generally, an employee must show the following:
- The employee belongs to a protected group.
- The employee was competently performing in his or her position (or is qualified for the position in the case of applicants).
- The employee suffered an adverse employment action.
- The action occurred under circumstances suggesting a discriminatory motive.
Generally, to prove discrimination, the plaintiff must show that the adverse action was taken because of the protected category. For example, that they were terminated because of their race or because they complained about sexual harassment.
Employers, on the other hand, can defend against these allegations by proving had legitimate business reason for taking the action in question—a reason unrelated to the protected category.
Once the employer shows it had a legitimate business reason for the action, the employee can challenge that reason as pretext for discrimination (i.e. that the "true" reason really is discrimination, not the legitimate reason given by employer). This is where mixed motives can come in, and they do offer employers some benefits, but do not absolve them of liability.
In mixed motive case, the evidence shows that employer has taken adverse action for a combination of both legitimate and unlawful reasons (i.e., there is no "true" reason—the employer had multiple reasons for taking the action). When a plaintiff in a Title VII case proves that a protected category played a motivating part in an employment decision, the defendant 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.
Title VII has been amended such that when an employer demonstrates that it would have taken the same action in absence of the impermissible motivating factor, this is not a complete defense to liability, but it does limit the remedies for the plaintiff.
How the mixed motive defense works in practice
How does this work in reality?
"First, the plaintiff must first show that the discrimination was a motivating factor in the adverse action using direct or circumstantial evidence." Jacuzzi told us. The burden then shifts to the employer to show that it would have taken the same action in the absence of the impermissible motivating factor (i.e. even if it had not taken race, gender, etc., into account).
"If the employer meets its burden, then the plaintiff's remedies are limited. It's not a complete bar to liability, but if an employer can demonstrate it would have made the same decision anyway, a court may not award monetary damages or order reinstatement or promotion. They only award declaratory relief, certain injunctive relief, and attorneys' fees and costs." Jacuzzi explained. The employer may win on the mixed motive, meaning the damages will be limited, but the attorneys' fees and costs may still be quite high.
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.