It is an age old litigation problem.  The employee engaged in conduct the employer found sufficient for termination.  The employee claims that was not the real reason and points to alleged discriminatory acts. How does one decide the issue?  As importantly, from an HR perspective, how does the employer assess risk as no workplace is pristine?

In Harris v. City of Santa Monica, a bus driver alleged she was fired by the City of Santa Monica because of her pregnancy in violation of the prohibition on sex discrimination in the Fair and Employment and Housing Act (FEHA).  The City claimed she was fired for poor job performance.

In a unanimous decision issued February 7, 2013, the California Supreme Court held that when a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is then entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time.  If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement.

In this scenario, however, the employer does not escape liability.  The Court held that in light of the Fair Employment and Housing Act’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff could still be awarded declaratory relief or injunctive relief to stop discriminatory practices.  Additionally, a court could award a plaintiff reasonable attorney’s fees.

One can infer from the Court’s opinion that, given the language of Government Code section 12940(a), an employer who proves it would have made the same decision has a complete defense to a plaintiff who only proves discrimination was a factor motiving the adverse employment action.  The import of the Court’s opinion may be short-lived as the Court suggests the requirement that discrimination be a “substantial” factor could be changed by the Legislature, much as it was in 1993 when the Legislature added “motivating factor” language to the housing provisions of the FEHA.  Indeed, the Court hinted that such a legislative change could be crafted retroactively.