On February 7, 2013, the California Supreme Court held that where a plaintiff proves that unlawful discrimination in violation of the Fair Employment and Housing Act ("FEHA") was a substantial factor motivating her termination, but the employer proves that it would have made the same employment decision absent such discrimination, the plaintiff may obtain only declaratory or injunctive relief and attorneys’ fees and costs, but may not recover damages, backpay, or reinstatement.

In Harris v. City of Santa Monica, the plaintiff, a former bus driver employed at-will by the City of Santa of Monica (“the City”), sued for sex discrimination in violation of FEHA after she was discharged on the same day that she submitted a doctor’s note confirming her pregnancy. The City claimed that the plaintiff was discharged for her poor job performance and failure to meet its standards for continued employment, given that, during her seven-month employment, she was involved in two preventable accidents, incurred two unexcused absences, and was evaluated as needing “further development.”

At trial, the court refused to instruct the jury that if it found a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to terminate the plaintiff. The Court of Appeal reversed, finding prejudicial error in refusing to provide the legally correct instruction. The California Supreme Court affirmed in part.

The California Supreme Court agreed with Justice O’Connor’s concurring opinion in Hopkins v. Price Waterhouse that “the plaintiff must produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision.” The Court reasoned: “Requiring the plaintiff to show that discrimination was a substantialmotivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.”

Where a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the same time. Proof that the employer, in the absence of any discrimination, would have made the same decision precludes an award of damages, backpay, or reinstatement to the plaintiff. A terminated employee should not be put in a better position than she would have occupied had the discrimination not occurred.

This same-decision showing, however, is not a complete defense to liability under FEHA. When the plaintiff has proven that discrimination on the basis of a protected characteristic was a substantial factor in motivating the adverse employment action, declaratory or injunctive relief, along with attorneys’ fees and costs, may still be available to plaintiff in light of the FEHA’s express purpose of preventing and deterring unlawful discrimination in the workplace.