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 response to Harris, the California legislature passed SB 655, which would have defined "substantial motivating factor" as follows:
For purposes of this section, “substantial motivating factor” means a factor that contributed to the employment action or decision. It shall be more than a remote or trivial factor, but need not be the only or main cause of the employment action or decision. Evidence that the person claiming to be aggrieved had a protected characteristic at the time of the employment action or decision is not, by itself, sufficient proof that the protected characteristic was a substantial motivating factor.SB 655 also would have provided a $25,000 civil penalty in any action in which the employee proved that discrimination was a substantial motivating factor for an adverse employment action, even if the employer proved that it would have made the same decision without considering the protected characteristic or activity.
Governor Brown vetoed SB 655 on October 10, 2013. He wrote in his veto message:
I think Supreme Court Justice Goodwin Liu got it right in his well-reasoned opinion in [Harris] and I see no reason for further legislative intervention.
Additional information is available here.