In Harris v. City of Santa Monica, the CA Supreme Court ruled that an employer could be liable under the Fair Employment and Housing Act (FEHA) if that employer took “adverse employment action” against an employee and unlawful discrimination was a “substantial factor motivating” that action. However, the Court also ruled that an employer can escape some liability if it can show that legitimate, non-discriminatory reasons would have led it to take the same action against the employee (the so-called “same decision showing”). In such a case — where an employee has shown that unlawful discrimination was the substantial factor motivating her termination, but the employer has then shown that it had legitimate non-discriminatory reasons to fire that employee anyway — the employee cannot be awarded damages, back pay, or any order of reinstatement. Instead, according to the CA Supreme Court, the employee is entitled only to an award of reasonable attorneys’ fees, court costs, and declaratory/injunctive relief, if warranted by the evidence.
Harris offers some good news for employers because it increases the standard of proof that an employee must show in mixed motive FEHA cases. Now, an employee who claims to have suffered a termination, demotion, or other adverse employment action has to show that unlawful discrimination was a substantial motivating factor in that action. In addition, after Harris an employer can raise a mixed motive defense to explicitly limit its liability under FEHA even if some discrimination was present, so long as the employer can make a same decision showing.
But Harris also offers some good news to employees, too. In many FEHA cases, attorneys’ fees are the largest part of an employee’s recovery. The Harris decision did not disturb an employee’s right to collect attorneys’ fees, even if the employer comes forward with a persuasive same decision showing. So even after Harris employers face significant exposure in FEHA cases.
The CA Supreme Court’s decision in Harris v. City of Santa Monica can be found here.