Court: Superior County: Los Angeles Judge: Soussan G. Bruguera Ct.App. 2/8 B199571 Super. Ct. No. BC341569
The opinion of the court was delivered by: Liu, J.
A bus driver alleged that she was fired by the City of Santa Monica (the City) because of her pregnancy in violation of the prohibition on sex discrimination in the Fair Employment and Housing Act (FEHA). The City claimed that she had been fired for poor job performance. At trial, the City asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee. The Court of Appeal reversed, holding that the requested instruction was legally correct and that refusal to give it was prejudicial error.
We conclude that the Court of Appeal was correct in part. We hold that under 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. Therefore, we affirm the Court of Appeal's judgment overturning the damages verdict in this case and remand for further proceedings in accordance with the instructions set forth below.
Santa Monica's city-owned bus service, Big Blue Bus, hired Wynona Harris as a bus driver trainee in October 2004. Shortly into her 40-day training period, Harris had an accident, which the City deemed "preventable." Although no passengers were on her bus and no one was injured, the accident cracked the glass on the bus's back door. When the City hired Harris, it gave her its "Guidelines for Job Performance Evaluation," which said: "Preventable accidents . . . [are] an indication of unsafe driving. . . . [T]hose who drive in an unsafe manner will not pass probation."
In November 2004, Harris successfully completed her training period, and the City promoted her to the position of probationary part-time bus driver. As a probationary driver, Harris was an at-will employee. At some point during her first three-month probationary evaluation period (the record is not clear when), Harris had a second preventable accident in which she sideswiped a parked car and tore off its side mirror. According to Harris, she hit the parked car after swerving to avoid a car that had cut her off in traffic.
On February 18, 2005, Harris reported late to work and received her first "miss-out." The job performance guidelines defined a "miss-out" as a driver's failure to give her supervisor at least one hour's warning that she will not be reporting for her assigned shift. The guidelines noted that most drivers get one or two late reports or miss-outs a year, but more than that suggested a driver had a "reliability problem." The guidelines further provided that a miss-out would result in 25 demerit points and that "[p]robationary employees are allowed half the points as a permanent full time operator, which is 100 points."
On March 1, 2005, Harris's supervisor gave her a written performance evaluation covering her first three months as a probationary driver from mid-November 2004 to February 14, 2005. As to Harris's "overall performance rating," her supervisor indicated "further development needed." Harris testified at trial that her supervisor told her she was doing a good job and would have received a "demonstrates quality performance" rating but for her November accident.
On April 27, 2005, Harris incurred her second miss-out. She had accompanied her daughter to a juvenile court hearing and failed to timely notify her dispatcher that she would be late for a rescheduled 5:00 p.m. shift. Harris testified that the stress from her daughter's hearing caused her to forget to notify the dispatcher. Transit services manager Bob Ayer investigated the circumstances of Harris's miss-out, and on May 4 or 5, 2005, Ayer recommended to his supervisor, the bus company's assistant director, that the miss-out should remain in Harris's file. Ayer testified that the assistant director asked him to examine Harris's complete personnel file. He did so and told the assistant director that the file showed Harris was not meeting the city's standards for continued employment because she had two miss-outs and two preventable accidents, and had been evaluated as needing "further development."
On May 12, 2005, Harris had a chance encounter with her supervisor, George Reynoso, as she prepared to begin her shift. Seeing Harris's uniform shirt hanging loose, Reynoso told her to tuck it in. Harris confided to Reynoso that she was pregnant. Harris testified that Reynoso 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. Four days later, on May 16, Harris gave Reynoso a doctor's note permitting her to work with some limited restrictions. (Neither party argues the restrictions are relevant to Harris's case.) The morning Harris gave him the note, Reynoso attended a supervisors' meeting and received a list of probationary drivers who were not meeting standards for continued employment. Harris was on the list. Her last day on the job was May 18, 2005.
In October 2005, Harris sued the City, alleging that the City fired her because she was pregnant, a form of sex discrimination. 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, probationary employee.
The case was tried to a jury. The City asked the court to instruct the jury with BAJI No. 12.26, which pertained to its mixed-motives defense. The instruction states: "If you find that the employer's action, which is the subject of plaintiff'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. [¶] An employer may not, however, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Neither may an employer meet its burden by merely showing that at the time of the decision it was motivated only in part by a legitimate reason. 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. Instead, the jury was instructed according to California Civil Jury Instruction (CACI) No. 2500 that Harris had to prove that her pregnancy was a "motivating factor/reason for the discharge." "Motivating factor" was further defined according to BAJI No. 12.01.1 as "something that moves the will and induces action even though other matters may have contributed to the taking of the action." By special verdict, the jury found by a vote of nine-to-three that Harris's pregnancy was a motivating reason for the City's decision to discharge her and awarded her $177,905 in damages, of which $150,000 were for "non-economic loss, including mental suffering."
The City moved on multiple grounds for judgment notwithstanding the verdict and a new trial. The City argued, among other things, that the trial court's refusal to give the jury a mixed-motive instruction deprived the City of a legitimate defense. The court rejected this argument. Harris thereafter sought attorney's fees, which the court awarded in the amount of $401,187. (See Gov. Code, § 12965, subd. (b) ["In . . . actions brought under this section, the court, in its discretion, may award to the prevailing party . . . reasonable attorney's fees and costs . . . ."].)
Relying on prior Court of Appeal cases as well as federal law interpreting title VII of the Civil Rights Act of 1964 (42 U.S.C § 2000e et seq. (hereafter Title VII)), the Court of Appeal concluded that the requested jury instruction based on BAJI No. 12.26 was an accurate statement of California law and that the refusal to give the instruction was prejudicial error. At the same time, the Court of Appeal determined that there was substantial evidence supporting the jury verdict that Harris had been fired because of pregnancy discrimination. The Court of Appeal therefore remanded for a new trial. We granted Harris's petition for review to decide whether BAJI No. 12.26's mixed-motive instruction is correct.
California's FEHA provides in pertinent part: "It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] (a) For an employer, because ofthe race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, . . . marital status, sex, . . . age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." (Gov. Code, § 12940 (hereafter section 12940(a)); all further statutory references are to this code unless otherwise indicated.) Elsewhere the statute makes clear that " '[s]ex' includes, but is not limited to, . . . [¶] [p]regnancy . . . [¶] . . . [c]hildbirth, or medical conditions related to [pregnancy or] childbirth." (§ 12926, subd. (q)(1).)
In FEHA employment discrimination cases that do not involve mixed motives, we have adopted the three-stage burden-shifting test established by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). As explained in Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317 (Guz), 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. (See id. at pp. 354-356.)
The framework above 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. What is the trier of fact to do when it finds that a mix of discriminatory and legitimate reasons motivated the employer's decision? That is the question we face in this case.
Our goal, as in all cases of statutory interpretation, is to give effect to the Legislature's intent. In discerning that intent, we begin with the statutory text.
As noted, section 12940(a) prohibits an employer from taking an employment action against a person "because of" the person's race, sex, disability, sexual orientation, or other protected characteristic. The phrase "because of" means there must be a causal link between the employer's consideration of a protected characteristic and the action taken by the employer. The existence of this causation requirement in the statute is undisputed. What is disputed is the kind or degree of causation required.
Linguistically, the phrase "because of" is susceptible to many possible meanings. The City contends that the phrase "because of" means that an employer's consideration of a protected characteristic must be necessary to its decision to take the employment action at issue. This notion of causation is commonly called "but for" causation -- that is, the employer would not have taken the action but for its consideration of a protected characteristic.
An example of this construction of the phrase "because of" may be found in Gross v. FBL Financial Services, Inc. (2009) 557 U.S. 167 (Gross). Gross involved a dispute over the meaning of the prohibition on adverse employment actions "because of [an] individual's age" in the federal Age Discrimination in Employment Act (ADEA). (29 U.S.C. § 623(a).) The high court said that "the ordinary meaning of the ADEA's requirement that an employer took adverse action 'because of' age is that age was the 'reason' that the employer decided to act." (Gross, at p. 176.) To establish a violation of the statute, the court held, "a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision." (Ibid.)
Our precedent has recognized, however, that "but for" causation is not the only possible meaning of the phrase "because of" in the context of an antidiscrimination statute. In In re M.S. (1995) 10 Cal.4th 698, two minors were charged with violating California hate crime statutes that prohibited any person from interfering with the constitutional rights of another " 'because of the other person's race, color, religion, ancestry, national origin, or sexual orientation.' " (Id. at p. 706, fn. 1, quoting former Pen. Code, former §§ 422.6, 422.7 (added by Stats. 1987, ch. 1277, § 4, pp. 4546-4747); see In re M.S., at p. 706, fn. 1 [noting that the Legislature later "added gender and disability to the list of protected characteristics"].) In challenging the true findings on the charged offenses, the minors argued that the statutes "must be read to require proof the victim would not have been selected but for his or her protected characteristic." (In re M.S., at p. 716.) We did not endorse that view and instead explained that "nothing in the text of the statute suggests the Legislature intended to limit punishment to offenses committed exclusively or even mainly because of the prohibited bias. A number of causes may operate concurrently to produce a given result, none necessarily predominating over the others." (Id. at p. 719; see id. at p. 716 ["[W]e do not find in the statutes . . . a requirement that the prohibited motivation be the predominant or exclusive cause of the offense."].) Instead, we held that "a crime with multiple concurrent causes is still done 'because of' bias . . . if the prohibited bias was a substantial factor in the commission of the crime." (Id. at p. 716.) Our opinion further noted that the "substantial factor" requirement is not met in the case of "a person who entertains in some degree racial, religious or other bias, but whose bias is not what motivated the offense." (Id. at p. 719, italics omitted.)
Here, Harris similarly contends that the phrase "because of" in section 12940(a) does not mean that the employer's consideration of a protected characteristic must be the "but for" cause of the disputed employment action. Section 12940(a) does not say that the employment action must be "solely because of," "exclusively because of," or "predominantly because of" improper discrimination. The statute simply says "because of." In interpreting this phrase, however, Harris does not propose the "substantial factor" test stated in In re M.S. It is enough, according to Harris, that discrimination was "a motivating factor" in the employer's decision, even if other factors also played a role. As explained below, Harris's view is consistent with the long-standing interpretation of section 12940(a) adopted by the Fair Employment and Housing Commission (FEHC) as well as Congress's understanding of the phrase "because of" when it amended Title VII's prohibition on employment discrimination in 1991.
The discussion above indicates that there are at least three plausible meanings of the phrase "because of" in section 12940(a) -- (1) discrimination was a "but for" cause of the employment decision, (2) discrimination was a "substantial factor" in the decision, and (3) discrimination was simply "a motivating factor" -- each of which is supported by some authority. When faced with textual ambiguity, we often consult legislative history. But our review of the FEHA's legislative history has uncovered nothing that bears on the kind or degree of causation required by section 12940(a).
Amici curiae California Employment Law Counsel and Employers Group observe that the FEHA's prohibition on housing discrimination includes a provision that says: "A person intends to discriminate if race, color, religion, sex, . . . sexual orientation, marital status, national origin, ancestry, familial status, source of income, . . . [or] disability is a motivating factor in committinga discriminatory housing practice even though other factors may have also motivated the practice." (§ 12955.8, subd. (a).) Amici curiae contend that the Legislature's adoption of the "motivating factor" standard in the context of housing discrimination but not employment discrimination demonstrates its intent to exclude that standard from the FEHA's prohibition on employment discrimination.
It is well-established that " 'negative implications raised by disparate provisions are strongest' when the provisions were 'considered simultaneously when the language raising the implication was inserted.' " (Gross, supra, 557 U.S. at p. 175, quoting Lindh v. Murphy (1997) 521 U.S. 320, 330; see post, at p. 16 [discussing simultaneous amendments to Title VII and the ADEA].) In Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 735, the court drew such a negative inference where the disparate provisions "were reenacted together." Similarly, in People v. Giordano (2007) 42 Cal.4th 644, 670, the court drew a negative implication in the context of two disparate statutes amended "simultaneously."
Here, by contrast, the Legislature added the "motivating factor" language to the FEHA's housing provisions as part of a 1993 amendment whose sole purpose was to bring California housing law into conformity with federal law. (See Broadmoor v. San Clemente Homeowners Association (1994) 25 Cal.App.4th 1, 7-8.) There is no indication that the Legislature, in enacting section 12955.8, subdivision (a), considered the FEHA's employment discrimination provisions or any statutes other than California housing law. (See Assem. Com. on Judiciary, Rep. on Assem. Bill No. 2244 (1993-1994 Reg. Sess.) Apr. 28, 1993; Assem. Ways & Means Com., Analysis of Assem. Bill No. 2244 (1993-1994 Reg. Sess.) June 2, 1993; Sen. Com. on Judiciary, Rep. on Assem. Bill No. 2244 (1993-1994 Reg. Sess.) Aug. 24, 1993; Sen. Rules Com., Rep. on Assem. Bill No. 2244 (1993-1994 Reg. Sess.) Aug. 24, 1993.) Where a provision "contained in a related statute was added by amendment many years after the enactment of the statute containing no such provision," and where "it is not apparent to us that . . . the Legislature was necessarily concerned with anything beside[s]" the related statute, we have refused to ascribe an intent to the Legislature merely on the basis of negative inference. (Traverso v. People ex rel. Dept. of Transportation (1993) 6 Cal.4th 1152, 1166.)
We are left, then, with an ambiguity in the meaning of "because of" in section 12940(a). In the face of this ambiguity, the parties and various amici curiae direct our attention to judicial interpretation of the phrase "because of" as it appears in Title VII. We have said that "[b]ecause of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz, supra, 24 Cal.4th at p. 354.) Accordingly, we turn now to consider federal antidiscrimination law, beginning with Title VII and the United States Supreme Court's decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 288 (Price Waterhouse).
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because ofsuch individual's race, color, religion, sex, or national origin." (42 U.S.C. § 2000e-2(a)(1).) In Price Waterhouse, the high court observed that the federal courts of appeals were "in disarray" on what kind of causation Title VII requires and who bears the burden of proof in a mixed-motives case. (Price Waterhouse, supra, 490 U.S. at p. 238, fn. 2.)
At the time, some federal circuits required a plaintiff to prove "but for" causation to establish liability. (See McQuillen v. Wisconsin Education Assn. Council (7th Cir. 1987) 830 F.2d 659, 664-665; Bellissimo v. Westinghouse Electric Corp. (3d Cir. 1985) 764 F.2d 175, 179.) Other courts held that when a plaintiff has shown that discrimination was a "substantial" or "motivating" factor in an employment decision, the employer can avoid liability by proving it would have made the same decision absent the discrimination. (See Berl v. Westchester County (2d Cir. 1988) 849 F.2d 712, 714-715 ("substantial part"); Fields v. Clark University (5th Cir. 1987) 817 F.2d 931, 936-937 ("motivating factor").) Still other circuits held that when a plaintiff has shown that discrimination played a discernible part in an employment decision, a same-decision showing by the employer precludes damages ...