A plaintiff in an action under the Fair Employment and Housing Act (FEHA) 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
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.
In Alamo v. Practice Management Information Corporation (8/21/13) --- Cal.App.4th ---, pub. 9/5/13, the plaintiff, Alamo, sued her former employer, PMIC, for pregnancy discrimination and other non-statutory causes of action. The trial court entered judgment in her favor after jury trial on the FEHA and wrongful termination claims, and the Court of Appeal affirmed, but the California Supreme Court granted review and held pending its decision in Harris. On remand after Harris, the Court of Appeal reversed in part and affirmed in part, holding:
The trial court erred in using former CACI Nos. 2430, 2500, 2505, and 2507 to instruct the jury that Alamo had to prove that her pregnancy or pregnancy-related leave was “a motivating reason” for her discharge, rather than “a substantial motivating reason” for her discharge. Slip op. at 13-14.
The trial court did not err in using former CACI No. 2527 to instruct the jury that Alamo had to establish that PMIC discriminated or retaliated against her “because” she took a pregnancy-related leave. Slip op. at 15-16.
The trial court did not err in refusing to give the jury a "mixed-motive" or "same decision" instruction because PMIC failed to plead such a defense in its answer, waiving the defense. Slip op. at 16-18.
The opinion is available here.