In Harris v. City of Santa Monica (2/7/13) --- Cal.4th ---, the Supreme Court of California decided a number of highly important issues under California’s Fair Employment and Housing Act:
A plaintiff in a FEHA disparate impact action must prove that unlawful discrimination was a “substantial factor motivating” the alleged adverse employment action;
A defendant in such an action may use a “mixed-motive” defense by proving, by a preponderance of the evidence, that it would have made the same decision absent such discrimination;
A defendant making such a showing need not concede that unlawful discrimination played any role in its decision-making process; and
A same-decision showing is not a complete defense. If the defendant makes such a showing, the plaintiff may not obtain reinstatement, backpay, front pay, or noneconomic damages, but may obtain declaratory relief, injunctive relief, and reasonable attorney’s fees and costs.Harris also left unanswered a number of other issues:
What does “substantial motivating factor” really mean? How should trial judges instruct juries on this issue?
Are all discrimination cases mixed-motive cases? If not, how can attorneys and trial courts determine which cases may lead to mixed-motive findings? And if so, does the McDonnell Douglas burden-shifting analysis still apply to discrimination cases under California law?
What is the impact of Harris on pleading standards and practices, motions for summary judgment, and trial? Will we see requests for injunctive and declaratory relief in all FEHA cases going forward? And what proof will be required to obtain injunctive or declaratory relief?Paul W. Cane, Jr. – who argued the case for amici California Employment Law Council and Employers Group – and David deRubertis – who argued the case for the plaintiff, Wynona Harris – will discuss these issues and more with moderator (and mediator) Steven G. Pearl on February 22, 2013, at 12:00 p.m. Please join us.