This past February, the California Supreme Court addressed the viability of a mixed-motive defense to employment discrimination claims brought under the Fair Employment and Housing Act (FEHA) in the Harris v. City of Santa Monica case. The court held that where an employee demonstrates the employer’s adverse action was substantially motivated by discrimination but the employer demonstrates the employee would have been discharged even in the absence of any discriminatory intent, then a court cannot award back pay, damages, or reinstatement. However, where the unlawful discrimination was a “substantial factor” in the employment decision, the court held that the employee may be entitled to other remedies in the form of declaratory relief, injunctive relief, and attorneys’ fees and costs. For a detailed analysis on the Harris case, see our article, “California Supreme Court Rejects Damages, Back Pay, and Reinstatement Where Employer Proves Legitimate Mixed-Motive.”

The court in Harris essentially forged a middle course, foreclosing monetary damages against employers in these cases but contemplating the recovery of other relief, including—perhaps most importantly—attorneys’ fees.

Shortly after the Harris opinion was issued, California Senator Roderick Wright wasted little time in proposing legislation to both codify and alter the substantive rights set forth in Harris. If enacted, Senate Bill 655 would codify Harris by stating that to prevail under FEHA, an employee must show his or her employer’s discriminatory motive was a “substantial motivating factor” in the employment decision. The bill would define “substantial motivating factor” as one that is “more than a remote or trivial factor” contributing to the employment decision, but “need not be the only or main cause of the employment action.” In cases like Harris, where an employer is then able to show it would have made the same employment decision without regard to the discriminatory motive, SB 655 would foreclose the possibility of reinstatement or back pay. However, SB 655 would significantly depart from Harris in that, in addition to authorizing attorneys’ fees and injunctive relief in these cases, it would also allow the employee to recover “noneconomic damages caused by the adverse action” and would impose a mandatory statutory penalty of $15,000 against the employer.

If passed, SB 655 has the potential to alter the balance set forth in Harris, making it a significant piece of legislation for California employment law attorneys. The bill would expand the potential universe of exposure for employers in mixed-motive cases to include a significant $15,000 penalty (reduced from $25,000 during the amendment process) and noneconomic damages, which are notoriously unpredictable in jury trials. (In the original jury verdict in Harris the employee was awarded $150,000 in non-economic losses.) These additional remedies would substantially increase the risks of trial in these mixed-motive cases under FEHA.

SB 655’s potential impact certainly makes it worth watching as the legislature moves closer to recess. Presently, SB 655 has passed the Senate. It was referred to the Assembly’s Judiciary Committee, where it received a “do pass” notation on August 13 and has been ordered for a third and final reading before the Assembly.


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