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Thursday, December 6, 2012

Harris v. City of Santa Monica Oral Argument has a good review of yesterday's oral argument in Harris v. City of Santa Monica. For anyone who has not been following along, Harris raises the following issues: 
  1. The employee's burden of proof in an action under the FEHA (e.g., that the discriminatory animus was "a motivating factor," a "substantial factor," or the "but for cause" of the alleged adverse employment action); 
  2. Whether the defendant in such an action may raise a mixed-motive defense (i.e., that it had both discriminatory and non-discriminatory motives for the alleged adverse employment action or would have taken the same action in the absence of any discriminatory motive); and 
  3. Whether such a mixed-motive (or same decision) defense is a complete defense or merely bars the plaintiff from obtaining certain remedies.  
Justice Liu was the most active questioner.  He and others seemed to be leaning toward holding that such a defense is available, that the plaintiff must prove that discriminatory animus was a "substantial factor" in causing the adverse employment action, and that when the defendant proves such a defense, the plaintiff will not be eligible for economic damages or reinstatement.  

The decision is due in 90 days, which is March 4, 2013.  Within a week or two of the decision coming down, the State bar of California Labor and Employment Law Section will present a webinar on the Court's decision.  Both Paul Cane, who argued as amicus for the defense,  and David deRubertis, who argued for the plaintiff, have agreed to speak.  Stay tuned for more information.  

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