SAN FRANCISCO The California Supreme Court appeared headed Tuesday for a middle ground on the hot-button issue of mixed motives in employment discrimination cases.
Several justices sounded poised to hold employers liable for discrimination under California's Fair Employment and Housing Act if discrimination is "a substantial factor" in termination or demotion regardless of whether the employer also had legitimate reasons for the job action.
But several justices, including Tani Cantil-Sakauye and Goodwin Liu, also sounded inclined to eliminate money damages in such cases and limit remedies to declaratory and injunctive relief.
Employers argue that they shouldn't be held liable at all unless discrimination was the "but-for" cause of the job action. But such a rule could leave "discrimination in the air," said Liu, suggesting instead the kinds of nonmonetary damages available to federal plaintiffs under Title VII of the Civil Rights Act.
"I don't see that in FEHA," protested Barbara Greenstein, a deputy city attorney representing defendant city of Santa Monica.
But such a construction could serve FEHA's purposes, Cantil-Sakauye asked.
"It would serve the dual purpose of FEHA," Greenstein acknowledged, "but it's not in there now."
Harris v. City of Santa Monica was brought by Wynona Harris, a bus driver who had the misfortune of getting into two traffic accidents during her first six months of work. Her overall performance rating was described as "further development needed," but her supervisor also listed her future goals as "Keep up the Great Job!"
Two months later, after Harris incurred her second unreported absence, transit agency managers began scrutinizing her performance. Around the same time her immediate supervisor, George Reynoso, spotted her on the job with her shirt loose, and instructed her to tuck it in. When Harris informed him she was pregnant, he reacted with apparent displeasure and requested a doctor's note clearing her to work.
Four days later the same day Harris presented the doctor's note Reynoso and other managers decided to terminate her employment. She sued for pregnancy discrimination.
At trial, the city asked Los Angeles County Superior Court Judge Soussan Bruguera to instruct the jury that it would not be liable if it established, by a preponderance of the evidence, that it had legitimate reasons standing alone to terminate Harris. Bruguera refused. Instead, the jury found that Harris' pregnancy was "a motivating factor" for her discharge and awarded her $177,905 in damages and about $400,000 in attorney fees.
On Tuesday, Harris co-counsel David deRubertis pleaded with the court to stick with "a motivating factor" as the test, noting that FEHA uses that standard for housing discrimination. When Liu and Justice Joyce Kennard steered him toward the federal standard, he objected. "There is a drastic difference in California," said deRubertis, of the deRubertis Law Firm in Studio City. "We've gone on an extraordinarily different path."
But Liu questioned how jurors could sort out damages for the emotional harm of discrimination from the emotional harm of legitimately losing one's job, and Justice Kathryn Mickle Werdegar said the idea of reinstating an employee made no sense in those circumstances. The employer "would just turn around and terminate her again" for the nondiscriminatory reason, she said.
Werdegar and Justice Carol Corrigan said that under deRubertis' formulation, a pregnant woman could never be fired, no matter how incompetent, without exposing an employer to years of litigation about motivation. It didn't assuage Corrigan when deRubertis noted that pregnancy bias can be subconscious. That would mean "if I don't even know that I'm a little bit agitated about [pregnancy], I can still be sued," she suggested.
But the justices sounded equally wary of Greenstein's but-for test. A jury did find there was some discrimination in the case, Liu told her. "You can't wave it away by saying that wasn't the real reason" for the termination, he said, and FEHA wasn't intended to shield discriminatory behavior.
Paul Hastings partner Paul Cane Jr., representing amicus curiae California Employment Law Council, said the court should rule simply that plaintiffs must prove they would have kept their jobs absent the discrimination. That prompted Corrigan to ask what would then happen if an employer had two poor-performing employees and said "let's pick her because she's pregnant."
Cane hesitated but said that would be discrimination.
Liu said Cane was making "a powerful argument" but one "better tailored for the remedies involved."