California Supreme Court Limits Employer Liability Under the Fair Employment and Housing Act

The California Supreme Court decided this week in Harris v. City of Santa Monica that the mixed-motive defense applies to employment discrimination claims brought under the Fair Employment and Housing Act (FEHA).  This defense does not completely eliminate employer liability in discrimination claims but limits it significantly.

In Harris, a bus driver, Wynona Harris, alleged that the City of Santa Monica fired her because she became pregnant, in violation of the FEHA.  The City defended itself, claiming that it had fired Harris because of her poor job performance. In fact, Harris had history of work problems leading up to her termination, including two preventable bus accidents and two missed shifts.  Despite this history, Harris found it suspicious that the City fired her less than a week after she told her supervisor she was pregnant, so Harris sued the City for sex discrimination under the FEHA.

The City defended itself by arguing that it should not be liable at all because it had a mixed-motive for Harris’ termination.  The City explained that even if it had a discriminatory reason for firing Harris, it would not be liable if it simultaneously had a legitimate, nondiscriminatory reason that, standing alone, would have resulted in the City making the same decision to terminate her despite the discriminatory reason.

The Court in part agreed with the City.  It held that this mixed-motive defense could be used but that it would only limit employer liability, not remove liability completely, as the City had argued.  In using a mixed-motive defense, it would first need to be established by the employee that a discriminatory motive was a substantial factor in the employer’s.  Once this substantial factor element is proven, the employer has the opportunity to defend on the basis that it would have made the same decision based solely on nondiscriminatory reasons.

If the employer is successful in this defense, it will not be liable for back pay, damages, and reinstatement.  However, it may still be liable for attorneys’ fees and possibly subject to declaratory or injunctive relief.

How this affects your business?

The California Supreme Court’s decision gives employers a bit more leeway in employment decisions because the potential for liability is lessened.  Whereas before employers feared liability would attach if a discriminatory motive had any role in a decision, now that motive must have played a substantial role in the decision for liability to attach.  The employer may also limit liability through a mixed-motive defense.  This change in the law exhibits the Court’s willingness to arm employers with various shields to discrimination claims.

Please contact us at for more information about discrimination claims and how to make employment decisions in compliance with the FEHA.