What is a “mixed motives” defense? Lawyers often refer to this defense in the context of discrimination cases, and it is important for employers to understand this legal concept when making personnel decisions.
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Discrimination Update:
New Trial Ordered
For Pregnant Bus Driver
Trial Court Erred By Barring Important
Employer Defense To Discrimination
By Christopher W. Olmsted
What is a “mixed motives” defense? Lawyers often refer to this defense in the context of discrimination cases, and it is important for employers to understand this legal concept when making personnel decisions. A recent California case titled Harris v. City of Santa Monica turns on this defense. An appellate court has ruled that the trial court erred by refusing to instruct the jury on the mixed motives defense.
A Few Bumps In The Road
The case involved allegations of pregnancy discrimination. Ms. Harris was a bus driver for the City of Santa Monica. After she was hired in October 2004, there were a few incidents during her probationary period. She had two “preventable” accidents; one in which she smashed the back window of the bus, and another in which she side-swiped a parked car, clipping off the side mirror. She was also late to work once.
Ms. Harris received a performance review noting that “further development was needed,” but that overall her performance was good.
About sixty days later, Ms. Harris was late again. She attended a hearing with her daughter in juvenile court, and when her daughter was charged with a felony, Ms. Harris was too distraught to remember to call in to work. After an investigation, management determined that the tardiness was not excused.
Next Stop: Maternity Ward
About one week later, Ms. Harris took her supervisor aside and told him that she was pregnant. According to Ms. Harris, the supervisor reacted with seeming displeasure at her news, exclaiming, "Wow. Well, what are you going to do? How far along are you?" He then asked her to get a doctor's note clearing her to continue to work. Ms. Harris returned with the note, clearing her to work.
The morning Ms. Harris gave her supervisor the note, he attended a supervisors’ meeting and received a list of probationary drivers who were not meeting standards for continued employment. Ms. Harris was on the list.
Two days later, a department manager fired Ms. Harris. Ms. Harris testified that the manager told her the city had been evaluating all part-time drivers and, although he had heard a lot of good things about her, the next day was going to be her last as a city employee.
All Aboard For The Lawsuit
Ms. Harris sued the city. She alleged the city fired her because she was pregnant. The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination based on sex, including pregnancy discrimination. (See Cal. Gov. Code, §§ 12940, subd. (a); 12926, subd. (p))
Answering Harris’s complaint, the city denied her allegations and asserted as an affirmative defense that it had legitimate, nondiscriminatory reasons to fire her as an at-will employee.
A Wrong Turn En Route?
The case was tried to a jury. During the trial, a controversy arose regarding jury instructions. During a jury trial, a judge reads “jury instructions” to the jury. These instructions inform the jury of the relevant laws to be applied during deliberations.
The city asked the court to read an instruction regarding the “mixed motives” defense. The requested instruction states in part: “If you find that the employer's action, which is the subject of the employee’s claim, was actually motivated by both discriminatory and non-discriminatory reasons, 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. … The essential premise of this defense is that a legitimate reason was present, and standing alone, would have induced the employer to make the same decision.”
The court refused to give the instruction. The court's reason for rejecting the instruction appears to have been that Harris conceded she was an at-will employee (by which the court presumably meant she conceded she could be fired without cause), but the city's purported reason for terminating her -- poor performance -- was pretextual.
The city lost. The jury found that Harris's pregnancy was a motivating factor/reason for the city's decision to discharge her. The jury awarded her $177,905 in damages.
Mixed Motive
The city appealed, arguing that the trial court erred by not giving the mixed motives instruction.
The appellate court began with the observation that Ms. Harris was an at-will employee. The anti-discrimination provisions of the Fair Employment and Housing Act under which she sued the city do not require the employer to have good cause for its termination decisions. “The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all,” observed the court, “as long as its action is not for a discriminatory reason.”
But what happens when the reasons for termination are a mixed bag? For example, the employee is terminated for legitimate reasons (tardiness, avoidable accidents) but also for alleged discriminatory reasons (pregnancy). Then the mixed motives defense comes into play. In a mixed motive case, both legitimate and illegitimate factors contribute to the employment decision. If the employee establishes that an illegitimate factor played a motivating or substantial role in an employment decision, then the employer may invoke the mixed motives defense. The employer must prove that it would have made the same decision even if it had not taken the illegitimate factor into account.
In a way, it is a “no harm, no foul” defense. “Hey, maybe the pregnancy thing crossed our minds when we made the decision,” the employer might say, “but we still would have fired her for being late, even if she wasn’t pregnant.”
Importantly, the appellate court reaffirmed that the mixed motives defense is recognized law in California. The trial court erred by refusing to read the jury instruction. Accordingly, the case was sent back for a new trial.
Practical Implications
The mixed motives defense is certainly not an invitation to employers to discriminate. Quite the contrary, actually. The defense is recognition that employers who have objective, uniformly applied rules for discipline and termination can fairly defend themselves against accusations of discrimination.
In the Harris case, the pregnant bus driver had some evidence in her favor. Timing, for one. As lawyers and judges like to say, “Post hoc ergo propter hoc.” We like to use Latin to make us sound smart, but it simply means "after this, therefore because (on account) of this." In other words, "Since that event followed this one, that event must have been caused by this one." Ms. Harris was fired very shortly after she announced her happy news, she argued, so the manager must have fired her for getting pregnant.
Keep in mind that when you make an adverse personnel decision shortly after a revelation that a person is in a protected category, you become vulnerable to this sort of insinuation. Timing does matter. Of course, the timing can just be a coincidence, but in a lawsuit a jury could decide either way.
Another thing in Ms. Harris’s favor was the manager’s supposed negative reaction to the news. According to Ms. Harris’s lawyers, the jury could infer a discriminatory motive from this negative reaction.
Keep in mind that any sort of negative reaction to an announcement regarding a “protected status” can be used against the employer. Supervisors should be trained to respond with an appropriate demeanor when employees make such disclosures.
That said, the City of Santa Monica can make good use of the mixed motives defense. Assume that the city has a uniform set of rules for issues like bus accidents and tardiness. Assume that those rules are evenly enforced, and all bus drivers, pregnant or otherwise, are disciplined in a similar way for violating the rules. Assume that in the past, other bus drivers have been terminated for the same sort of violations. Assume that the managers met promptly to discuss personnel issues. Ms. Harris’s termination then becomes just another routine personnel decision. Though the termination may come on the heels of her announcement, and though her supervisor may have winced at the news, the termination was inevitable. Anyone in her shoes would have been fired for poor performance.
Essentially, the mixed motives defense puts the fancy Latin phrase on a boomerang. Post hoc ergo propter hoc. You violated the rules, therefore you were terminated.
It should therefore dawn on the employer that objective personnel policies, uniformly and fairly applied, can save the day.
Related articles:
Pregnancy Discrimination Update: Sea Captain Unlawfully Terminates Pregnant Shipmate.
Download entire November 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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