Mixed Motives- Limitations on Remedies- Same Decision

In the context of wrongful termination and employment law in California, “mixed motive” cases present a unique legal challenge. These cases occur when there is evidence suggesting both prohibited (e.g., discriminatory) and legitimate reasons for an employer’s adverse action against an employee. Here’s an extensive overview of mixed motive cases, their legal consequences, potential problems, and illustrative examples:

Legal Framework

Mixed Motive Definition: A mixed motive case arises when an employer has both legitimate and unlawful reasons for taking an adverse action (such as termination, demotion, or pay cut) against an employee.
Statutory Basis: These cases are evaluated under the California Fair Employment and Housing Act (FEHA) and relevant case law. FEHA prohibits employment decisions based on protected characteristics (like race, gender, age, etc.).

Application in Legal Context

Employee’s Burden of Proof: The employee must first present sufficient evidence that a prohibited reason was a motivating factor in the adverse employment action.
Employer’s Defense: The employer can then counter with evidence that they had a legitimate, non-discriminatory reason for the action.
Jury’s Role: The jury evaluates the evidence to determine whether both prohibited and legitimate reasons motivated the employer’s decision.

Legal Consequences

For Employees: If the jury finds a mixed motive, employees may not be entitled to damages (like back pay or emotional distress) that are typically awarded in discrimination cases.
For Employers: However, employers can still be liable for the employee’s attorney fees and costs. This is because the prohibited reason was found to be part of the motivation for the adverse action.

Problems and Challenges

Determining Mixed Motive: Establishing that a decision was made with mixed motives can be highly complex and subjective.
Evidence and Documentation: Both parties need to provide substantial evidence to support their claims, which can be difficult, especially for the employer to prove non-discriminatory motives.
Jury Interpretation: The way juries interpret “motivating factors” can vary significantly from case to case.
Employer’s Liability for Costs: Even if not liable for damages, the responsibility for legal costs can be a significant financial burden for employers.

Examples

Example of Mixed Motive Case: An employee is terminated after filing a sexual harassment complaint. The employer argues the termination was due to poor performance, evidenced by performance reviews. If the jury finds both reasons were motivators, it’s a mixed motive case.
Example of Clear Cut Discrimination: An employee is terminated solely based on their race, with no evidence of performance issues or other legitimate reasons. This would not be a mixed motive case but straightforward unlawful discrimination.

Conclusion

In California, mixed motive cases in wrongful termination and employment law require careful navigation. They present unique challenges in proving the extent and impact of both legitimate and prohibited motivations behind an employer’s action. These cases emphasize the need for thorough documentation and legal strategy from both parties. Due to their complexity, legal counsel is often crucial for navigating mixed motive scenarios effectively.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2512. Limitation on Remedies—Same Decision

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was [discharged/[other adverse employment action]] because of [his/her/nonbinary pronoun] [protected status or action, e.g., race, gender, or age], which is an unlawful [discriminatory/retaliatory] reason. [Name of defendant] claims that [name of plaintiff] [was discharged/[other adverse employment action]] because of [specify reason, e.g., plaintiff’s poor job performance], which is a lawful reason.

If you find that [discrimination/retaliation] was a substantial motivating reason for [name of plaintiff]’s [discharge/[other adverse employment action]], you must then consider [name of defendant]’s stated reason for the [discharge/[other adverse employment action]].

If you find that [e.g., plaintiff’s poor job performance] was also a substantial motivating reason, then you must determine whether the defendant has proven that [he/she/nonbinary pronoun/it] would have [discharged/[other adverse employment action]] [name of plaintiff] anyway at that time based on [e.g., plaintiff’s poor job performance] even if [he/ she/nonbinary pronoun/it] had not also been substantially motivated by [discrimination/retaliation].

In determining whether [e.g., plaintiff’s poor job performance] was a substantial motivating reason, determine what actually motivated [name of defendant], not what [he/she/nonbinary pronoun/it] might have been justified in doing.

If you find that [name of defendant] [discharged/[other adverse employment action]] [name of plaintiff] for a [discriminatory/retaliatory] reason, you will be asked to determine the amount of damages that [he/she/nonbinary pronoun] is entitled to recover. If, however, you find that [name of defendant] would have [discharged/[other adverse employment action]] [name of plaintiff] anyway at that time for [specify defendant’s nondiscriminatory/nonretaliatory reason], then [name of plaintiff] will not be entitled to reinstatement, back pay, or damages.

New December 2013; Revised June 2015, June 2016

Directions for Use

Give this instruction along with CACI No. 2507, “Substantial Motivating Reason” Explained, if the employee has presented sufficient evidence for the jury to find that the employer took adverse action against him or her for a prohibited reason, but the employer has presented sufficient evidence for the jury to find that it had a legitimate reason for the action. In such a “mixed-motive” case, the employer is relieved from an award of damages, but may still be liable for attorney fees and

costs and injunctive relief. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 211 [152 Cal.Rptr.3d 392, 294 P.3d 49].)

Mixed-motive must be distinguished from pretext though both require evaluation of the same evidence, i.e., the employer’s purported legitimate reason for the adverse action. In a pretext case, the only actual motive is the discriminatory one and the purported legitimate reasons are fabricated in order to disguise the true motive. (See City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716].) The employee has the burden of proving pretext. (Harris, supra, 56 Cal.4th at pp. 214–215.) If the employee proves discrimination or retaliation and also pretext, the employer is liable for all potential remedies including damages. But if the employee proves discrimination or retaliation but fails to prove pretext, then a mixed-motive case is presented. To avoid an award of damages, the employer then has the burden of proving that it would have made the same decision anyway solely for the legitimate reason, even though it may have also discriminated or retaliated.

Sources and Authority

“[U]nder the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.” (Harris, supra, 56 Cal.4th at p. 211.)
“Because employment discrimination litigation does not resemble the kind of cases in which we have applied the clear and convincing standard, we hold that preponderance of the evidence is the standard of proof applicable to an employer’s same-decision showing” (Harris, supra, 53 Cal.4th at p. 239.)
“[W]hen we refer to a same-decision showing, we mean proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.” (Harris, supra, 56 Cal.4th at p. 224, original italics.)
“In light of today’s decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer’s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 56 Cal.4th at p. 241.)
“We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and

even by itself determinative of an employment decision without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)

“[A] plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer’s proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff.” (Harris, supra, 56 Cal.4th at pp. 214–215.)
- “In some cases there is no single reason for an employer’s adverse action, and a discriminatory motive may have influenced otherwise legitimate reasons for the employment decision. In Harris v. City of Santa Monica (Harris) the California Supreme Court recognized the traditional McDonnell Douglas burden-shifting test was intended for use in cases presenting a single motive for the adverse action, that is, in ‘cases that do not involve mixed motives.’ As the Court explained, this ‘framework . . . presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate. By hinging liability on whether the employer’s proffered reason for taking the action is genuine or pretextual, the McDonnell Douglas inquiry aims to ferret out the “true” reason for the employer’s action. In a mixed-motives case, however, there is no single “true” reason for the employer’s action.’ ” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1182 [220 Cal.Rptr.3d 42], internal citations omitted.)
- “Following the California Supreme Court’s decision in Harris, . . . the Judicial Council added CACI No. 2512, to be given when the employer presents evidence of a legitimate reason for the adverse employment action, informing the jurors that even if they find that discrimination was a substantial motivating reason for the adverse action, if the employer establishes that the adverse action nonetheless would have been taken for legitimate reasons, ‘then [the plaintiff] will not be entitled to reinstatement, back pay, or damages.’ ” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320−1321 [200 Cal.Rptr.3d 315].)
- “ ‘[Plaintiff] further argues that for equitable reasons, an employer that wishes to make a same-decision showing must concede that it had mixed motives for taking the adverse employment action instead of denying a discriminatory

motive altogether. But there is no inconsistency when an employer argues that its motive for discharging an employee was legitimate, while also arguing, contingently, that if the trier of fact finds a mixture of lawful and unlawful motives, then its lawful motive alone would have led to the discharge.’ ” (Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th

169, 199 [167 Cal.Rptr.3d 24] [quoting Harris, supra, 56 Cal.App.4th at p.

240].)

“As a preliminary matter, we reject [defendant]’s claim that the jury could have found no liability on the part of [defendant] had it been properly instructed on the mixed-motive defense at trial. As discussed, the Supreme Court in Harris held that the mixed-motive defense is available under the FEHA, but only as a limitation on remedies and not as a complete defense to liability. Consequently, when the plaintiff proves by a preponderance of the evidence that discrimination was a substantial motivating factor in the adverse employment decision, the employer is liable under the FEHA. When the employer proves by a preponderance of the evidence that it would have made the same decision even in the absence of such discrimination, the employer is still liable under the FEHA, but the plaintiff’s remedies are then limited to declaratory or injunctive relief, and where appropriate, attorney’s fees and costs. As presently drafted, BAJI No. 12.26 does not accurately set forth the parameters of the defense as articulated by the Supreme Court, but rather states that, in a mixed-motive case, ‘the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.’ By providing that the mixed-motive defense, if proven, is a complete defense to liability, [defendant]’s requested instruction directly conflicts with the holding in Harris. (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 481 [161 Cal.Rptr.3d 758], internal citations omitted.)
“Pretext may . . . be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 [100 Cal.Rptr.3d 296].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1037, 1067

7 Witkin, California Procedure (5th ed. 2008), Judgment § 217

3 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.11 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.23 (Matthew Bender)