SAN FRANCISCO California Supreme Court Justice Marvin Baxter has recused himself from a major pregnancy discrimination case in the wake of a lawsuit filed against his daughter last week that could be affected by the Supreme Court ruling.
The high court issued an order on Tuesday in Harris v. City of Santa Monica signed by Baxter, saying only, "The undersigned hereby recuses himself from any further participation in this matter."
The Supreme Court is expected to decide in Harris the scope of the "mixed motive" defense to employment discrimination claims. The court will decide the issue in the context of a pregnancy discrimination suit that arguably bears resemblances to the suit filed Jan. 8 against Laura Baxter-Simons.
The timing is awkward for the court, which heard argument in Harris last month and is expected to rule by early March. Most recusals occur long before oral argument.
The California Constitution states that the "concurrence of four judges present at the argument is necessary for a judgment," so it would appear the court could proceed without Baxter so long as it can muster four of the six remaining remembers for a majority. Or it could appoint a pro tem justice as is typical for recusals but would likely have to either obtain an argument waiver from the litigants or rehear the case. The court could decide how to proceed as soon as its Wednesday conference.
Tuesday's order gave no reason for Baxter's recusal. But last week two San Francisco employment attorneys filed a pregnancy discrimination suit against Baxter-Simons, an East Bay attorney, alleging she violated California's Fair Employment and Housing Act by terminating a pregnant housekeeper.
Madalyn Garcia alleges in Garcia v. Elan Household that she was fired a few months after notifying Baxter-Simons that she was pregnant and would need a full 12-week maternity leave. Baxter-Simons told Garcia she was unhappy about Garcia's request to take Tuesdays and Thursdays off in lieu of weekends during her pregnancy, the suit contends, and Baxter-Simons' personal assistant began aggressively documenting "small time-keeping discrepancies" such as Garcia's occasional failure to clock in and out before she was fired in August.
In Harris, a pregnant bus driver alleges that after she told her supervisor she was pregnant, he said she would need a doctor's note to continue working. Her employer terminated her a few weeks later, saying it was not about her pregnancy, but rather about her driving and attendance record.
At argument last month, several justices sounded poised to hold employers liable if discrimination is "a substantial factor" in termination or demotion, but also to limit damages if a jury also finds legitimate grounds for an employment action.