Changes To California Mixed-Motive Rules

Yesterday, we looked at the case of a California employee, Lorena Alamo, who successfully established that her termination was due to improper “mixed motives” (the employer had both unlawful and legitimate reasons for the firing).

But the state Supreme Court subsequently changed the rules—good news for employers; bad news for Alamo.

[For yesterday’s case details, click here.]

The Supreme Court’s new standard for mixed-motive cases

After a California appeals court decided Alamo’s case in her favor, the California Supreme Court considered another pregnancy discrimination case brought under the state Fair Employment and Housing Act (FEHA) (Harris v. City of Santa Monica, Calif. Supreme Court No. S181004, 2013).

The employer in that case also argued that the proper standard for liability was “but for.” The employee countered that it was enough to show that discrimination was a motivating factor in the action, even if other factors also played a role.

The Supreme Court rejected both arguments. It held that under FEHA, an employee must first show that unlawful discrimination was a “substantial motivating factor” in the adverse employment decision. The employer can then make a “same-decision” showing by demonstrating through a “preponderance of the evidence” that it would have made the same decision even if there had been no discrimination.

If the employer does so, a court may not award the employee damages (such as emotional distress), backpay, or reinstatement to the job. The employer doesn’t completely escape liability, though—the employee could still be awarded declaratory relief (to condemn discriminatory practices) or injunctive relief (to put a stop to discriminatory practices) as well as reasonable attorneys’ fees and costs.

The new standard in action

Following its ruling in Harris, the Supreme Court in May directed the Court of Appeals to reconsider the Alamo case. (The Supreme Court had earlier agreed to review the Alamo case; its ruling doesn’t apply retroactively to every mixed-motive case.)

Pregnancy bias isn’t the only thing you need to worry about, especially since the EEOC is cracking down on national origin discrimination. Learn more at our webinar next week.

The Court of Appeals then concluded that the trial court erred in instructing the jury that Alamo needed to prove that discrimination was only a motivating reason for her discharge, rather than a substantial motivating reason.

But the appellate court found that the “substantial motivating factor” language wasn’t required in the jury instructions for claims for failure to prevent discrimination or retaliation.

It upheld instructions that required Alamo to prove, among other things, that “she was subject to discrimination or retaliation because she took a leave for pregnancy, childbirth, or related conditions.”

The Supreme Court’s ruling in Harris considered the meaning of the phrase “because of”—and found it meant “a substantial motivating factor”—only in the context of FEHA’s antidiscrimination provision. According to the Court of Appeals, the state high court didn’t suggest that using the phrase “because of” in explaining the standard for failure to prevent claims would be inaccurate or incomplete.

The Court of Appeals ended up reversing the judgment in Alamo’s favor and returning the case to the trial court for retrial under appropriate jury instructions.

Good news, but …

It’s important to remember that successfully mounting a mixed-motive defense won’t necessarily shield an employer from liability under FEHA—the defense only limits an employee’s remedies to declaratory or injunctive relief. To avoid all liability, an employer must establish that its legitimate reason, standing alone, would have prompted the adverse employment decision.

National Origin Discrimination: How the EEOC’s Renewed Focus on Title VII Violations Can Impact Your Organization

Live webinar coming next Wednesday, April 23, 2014

10:30 a.m. to Noon Pacific

Late last year, the Equal Employment Opportunity Commission held a public hearing to discuss the compliance challenges employers face given the diverse, multicultural nature of the American workforce. EEOC Chair Jacqueline Berrie made it clear that her organization would be cracking down on national origin discrimination, which for employers covers everything from dress codes to English-only policies under Title VII.

Overlooking your compliance obligations could lead to very costly settlements and lengthy litigation. Consider this recent example:

In 2012, a medical center paid close to $1 million to settle a case alleging that 70 Filipino-American hospital workers had endured continued harassment and discrimination due to their national origin, with much of the discrimination starting with upper levels of management.

To keep your organization in compliance, participate in this timely webinar next Wednesday, April 23. Your presenter Douglas J. Farmer, an experienced labor and employment attorney whom the EEOC invited to provide testimony on national origin discrimination at its recent public hearing, will discuss how to minimize your risks of liability with regard to English-only policies, employment assessments, job assignments, harassment, and more.

Participate in this interactive webinar, and you’ll learn:

• Why the EEOC is taking a focused interest in national origin discrimination, and what its microscopic review could mean for you going forward
• Ways in which national origin discrimination may occur in the workplace, so you can identify whether your current policies and practices might expose your organization to significant legal liability
• Best practices for ensuring that your recruitment and hiring practices don’t breed national origin discrimination claims
• How to ensure that employment assessments don’t spark national origin discrimination claims
• Examples of how employers have landed in legal hot water with how they assign job tasks and pay rates so you can avoid such practices
• Tips for ensuring that English-only policies don’t spark language- or accent-based national origin discrimination claims—and when an English-only policy likely would stand up to EEOC or judicial scrutiny
• Strategies for effectively communicating with employees whom coworkers and customers have trouble understanding
• Types of conduct that could be construed as harassment based on national origin, and how to train supervisors and managers so they can spot and stop this type of behavior and mitigate your legal risks
• And more!

In just 90 minutes, you’ll learn valuable compliance tips for staying off the EEOC’s radar when it comes to national origin discrimination. Register now for this must-attend event risk-free.

Download your copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!