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 California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). 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.
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
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
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
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 of the 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).)
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.
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 [174 L.Ed.2d 119, 129 S.Ct. 2343] (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 of 1967 (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
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 [42 Cal.Rptr.2d 355, 896 P.2d 1365], 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 pp. 706-707, fn. 1, quoting Pen. Code, former §§ 422.6, 422.7 [added by Stats. 1987, ch. 1277, § 4, pp. 4546-4747]; see In re M.S., at p. 707, fn. 1 [noting that the Legislature later "add[ed] 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.)
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.
Amici curiae California Employment Law Council 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 committing a 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.
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 (1st 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 and reinstatement
In the case before us, the City does not contend that Harris had the burden of proving "but for" causation. Instead, the City argues that the trial court should have instructed the jury: "If you find that the employer's action ... 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." Thus, the City does not object to the burden-shifting aspect of Price Waterhouse. Its primary contention is that we should follow Price Waterhouse not only with respect to burden shifting, but also with respect to the legal effect of an employer's same-decision showing. Under Price Waterhouse, such a showing by the employer is a complete defense to liability. (Price Waterhouse, supra, 490 U.S. at p. 242 (plur. opn. of Brennan, J.); id. at p. 261, fn. *(conc. opn. of White, J.); id. at pp. 261-262 (conc. opn. of O'Connor, J.).)
The Court of Appeal below said that the 1991 amendments to Title VII have no relevance as an aid to interpreting section 12940(a) because our Legislature has not added any language to the FEHA that parallels the language Congress added to Title VII to codify the "motivating factor" standard of causation. On this view, Price Waterhouse's pre-1991 interpretation of the phrase "because of" to incorporate a same-decision defense to liability — and not Congress's 1991 amendments rejecting such a defense — is the relevant Title VII law that should guide our reading of the phrase "because of" in section 12940(a).
There is no reason to suppose, however, that the Legislature that enacted section 12940(a) in 1980 (Stats. 1980, ch. 992, § 4, p. 3140 et seq.) intended to adopt Price Waterhouse's meaning of "because of." Nor is it accurate to say that Congress's 1991 amendments to Title VII were intended to change the original, commonly understood meaning of "because of" in Title VII. The legislative history of the 1991 amendments tell a different story. The United States House of Representatives Education and Labor Committee report said the enactment of 42 United States Code section 2000e-2(m), which added the "motivating factor" language, was intended "to restore the decisional law in effect in many of the federal circuits prior to the decision in Price Waterhouse" — decisions that had interpreted the "because of" language in Title VII to mean that "`once the trier of fact has found that race was a factor influencing the decision ... [and] once race is shown to be a causative factor, [the violation is established].'" (H.R.Rep. No. 102-40 pt. 1, 1st Sess. p. 48 (1991) reprinted in 1991 U.S. Code Cong. & Admin. News, p. 695, italics added.) Similarly, the House Judiciary Committee report said that 42 United States Code section 2000e-2(m) "responds to Price Waterhouse by reaffirming that any reliance on prejudice in making employment decisions is illegal." (H.R.Rep. No. 102-40 pt. 2, 1st Sess., p. 2 (1991), reprinted in 1991 U.S. Code Cong. & Admin. News, p. 586, italics added.) The legislative history thus indicates that Congress overruled Price Waterhouse's same-decision defense to liability on the belief that it was reaffirming and restoring, not revising, the meaning of the phrase "because of" in Title VII's ban on employment discrimination.
This point is underscored by the high court's more recent decision in Gross, supra, 557 U.S. 167, addressing the meaning of the phrase "because of" in the context of a different antidiscrimination statute. As noted earlier, Gross interpreted the ADEA's prohibition on discrimination "`because of [an] individual's age'" to mean that a plaintiff has the burden of proving "but for" causation. (Gross, at pp. 176-177, italics omitted.) The high court observed that "[u]nlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§ 2000e-2(m) and 2000e-5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways [citations]." (Id. at p. 174.) These textual differences led the high court to conclude that the phrase "because of" in the ADEA should not be construed to incorporate either the "motivating factor" standard of causation or the burden-shifting framework established by Price Waterhouse. (Gross, supra, at pp. 174-175 & fn. 2, 178, fn. 5.) While rejecting the view that "`motivating factor' claims were already part of Title VII ..." before 1991 (id. at p. 178, fn. 5), Gross cast no doubt on the fact that Congress added the "motivating factor"
The City contends that because the phrase "because of" appears in both the FEHA and the ADEA without the "motivating factor" language that Congress added to Title VII, the ADEA — and not Title VII — is instructive on the meaning of "because of" in the FEHA. A similar argument underlies the City's contention that Price Waterhouse's pre-1991 construction of the phrase "because of" in Title VII, and not Congress's express definition of the phrase in 1991, should guide our interpretation of the same phrase in the FEHA. However, as Gross makes clear, the words "because of," standing alone, do not have a fixed or default meaning in legislative usage. In declining to follow Price Waterhouse's burden-shifting framework, Gross observed that the high court in prior cases had not construed the phrase "because of" to have the same meaning in Title VII and the ADEA, thereby confirming that the same phrase can have different meanings in different antidiscrimination statutes. (See Gross, supra, 557 U.S. at p. 175, fn. 2 ["[T]he Court's approach to interpreting the ADEA in light of Title VII has not been uniform."].) What ultimately matters is legislative intent. Because Congress did not add the "motivating factor" language to the ADEA even as it contemporaneously amended the ADEA in other ways, one can infer — as the high court did in Gross — that Congress did not intend the phrase "because of" to have the same meaning in the ADEA as it does in Title VII. (See Gross, at pp. 173-175.)
Here, there is no similar basis for inferring what our Legislature intended by the phrase "because of" in section 12940(a). (See ante, at pp. 216-217 [explaining why no negative inference can be drawn from the addition of "motivating factor" language to the FEHA's prohibition on housing discrimination].) The fact that the FEHA, unlike the post-1991 version of Title VII, does not expressly define the phrase "because of" establishes the existence of an ambiguity. It does not establish that the default meaning of the phrase is what Price Waterhouse said Congress meant by the phrase in Title VII. Although we have often looked to federal antidiscrimination law in interpreting similar language in the FEHA, we have not previously encountered this kind of temporal and cross-statutory variation in Congress's purpose behind a particular provision. Because recourse to federal antidiscrimination law is instructive only to the extent that its purpose and the FEHA's purposes are aligned, we must ultimately focus our attention on what the Legislature said it
In enacting the FEHA, the Legislature spoke at length about its purposes. Section 12920 states: "It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. [¶] It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general."
Section 12920 further declares: "It is the purpose of this part to provide effective remedies that will eliminate these discriminatory practices." And section 12920.5 provides: "In order to eliminate discrimination, it is necessary to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons."
In addition, section 12921, subdivision (a) says: "The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation is hereby recognized as and declared to be a civil right." Section 12993, subdivision (a) instructs that the FEHA "shall be construed liberally for the accomplishment of [its] purposes."
In light of these legislatively declared purposes, this court has said: "The policy that promotes the right to seek and hold employment free of prejudice is fundamental." (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220 [185 Cal.Rptr. 270, 649 P.2d 912] (Commodore); see Brown v. Superior Court (1984) 37 Cal.3d 477, 485 [208 Cal.Rptr. 724, 691 P.2d 272] ["As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination. (§ 12920.)"].) Further, in explaining why sex discrimination in particular violates public policy, we have relied on section
Mindful of the FEHA's purposes, we proceed to address what legal consequences flow from an employer's proof that it would have made the same employment decision in the absence of any discrimination. To be clear, when we refer to a same-decision showing, we mean proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision. (See Price Waterhouse, supra, 490 U.S. at p. 252 ["proving `"that the same decision would have been justified ... is not the same as proving that the same decision would have been made"'"; employer cannot make a same-decision showing "by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision"].)
We first consider whether a same-decision showing provides a complete defense to liability when a plaintiff has shown that an adverse employment action was motivated at least in part by discrimination. If not, then we must examine whether any relief may be awarded to the plaintiff where the employer shows it would have taken the same action in any event.
Second, separate and apart from its compensatory purpose, the FEHA aims "to provide effective remedies that will ... prevent and deter unlawful employment practices." (§ 12920.5.) This forward-looking goal of preventing and deterring unlawful discrimination goes beyond the tort-like objective of compensating an aggrieved person for the effects of any wrongs done in an individual case. It is rooted in the Legislature's express recognition that employment discrimination "foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general." (§ 12920.) This broader purpose underlying the FEHA is also reflected in our recognition of "the fundamental public interest in a workplace free from the pernicious influence of sexism. So long as it exists, we are all demeaned." (Rojo v. Kliger, supra, 52 Cal.3d at p. 90, original italics.)
In support of Hopkins's candidacy, the partners in her office submitted a joint statement describing her "outstanding performance" in securing a $25 million contract with the United States Department of State. The federal district court found that "`[n]one of the other partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership.'" (Price Waterhouse, supra, 490 U.S. at p. 234, quoting Hopkins v. Price Waterhouse (D.D.C. 1985) 618 F.Supp. 1109, 1112 (Hopkins).) The partners in Hopkins's office also praised her as "`an outstanding professional'" with a "`deft touch'" and "`strong character, independence and integrity.'" A State Department official described her as "`extremely competent, intelligent,'" "`strong and forthright, very productive, energetic and creative.'" "Another high-ranking official praised [her] decisiveness, broadmindedness, and `intellectual clarity....'" The federal district court "conclude[d] that Hopkins `had no difficulty dealing with clients and her clients appear to have been very pleased with her work' and that she `was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs with which she worked.'" (Price Waterhouse, at p. 234, quoting Hopkins, at pp. 1112-1113.)
"On too many occasions, however, Hopkins' aggressiveness apparently spilled over into abrasiveness. Staff members seem to have borne the brunt of
"There were clear signs, though, that some of the partners reacted negatively to Hopkins' personality because she was a woman. One partner described her as `macho' ...; another suggested that she `overcompensated for being a woman' ...; a third advised her to take `a course at charm school' .... Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only `because it's a lady using foul language.' ... Another supporter explained that Hopkins `ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.' ... But it was the man who, as [the district court] found, bore responsibility for explaining to Hopkins the reasons the Policy Board's decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should `walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.'" (Price Waterhouse, supra, 490 U.S. at p. 235, quoting Hopkins, supra, 618 F.Supp. at p. 1117, citations omitted.) Hopkins's candidacy was put on hold in 1982, and she was not put up for partnership again.
The district court "found that Price Waterhouse legitimately emphasized interpersonal skills in its partnership decisions, and also found that the firm had not fabricated its complaints about Hopkins' interpersonal skills as a pretext for discrimination." (Price Waterhouse, supra, 490 U.S. at p. 236.) At the same time, the district court found that Price Waterhouse had "discriminated against Hopkins on the basis of sex by consciously giving credence and effect to partners' comments that resulted from sex stereotyping." (Id. at p. 237.)
Another illustrative case in which discrimination could have been found to be a substantial motivating factor in an employment decision, though not necessarily a "but for" cause, is Rowland v. American General Finance, Inc. (4th Cir. 2003) 340 F.3d 187 (American General). In 1990, American General, a consumer lending company, hired Anita Rowland as an administrative assistant in its Lynchburg office. In 1991, George Roach, the director of
Rowland "allege[d] that Roach promised her that she `would be the next person to be promoted' to District Manager if she would transfer to Danville. Although it is not clear exactly what Roach said to Rowland, there is no dispute that Roach did in fact consider Rowland to be a candidate for the position of district manager.... [¶] However, notwithstanding its need to appoint a new district manager on three occasions in 1995, American General never promoted Rowland to that position." (American General, supra, 340 F.3d at p. 189.)
"Indisputably, Rowland's performance reviews revealed sufficient qualifications for a promotion to the district manager position. Indeed, throughout her employment with American General, Rowland received `favorable annual performance reviews' and annual merit-based pay increases. Her supervisors generally found that her job performance exceeded standards, that she was extremely dedicated and hard working, and that she comported herself with a high-level of professionalism.
"At the same time, however, Rowland's annual reviews from 1995 and 1996 suggested that she needed to work on her `people skills.' Moreover, shortly after American General refused to promote Rowland for the third time, Roach received a copy of a written complaint that a customer, who was apparently dissatisfied with the way Rowland had handled his attempt to cancel a loan, had filed with the State Corporation Commission. Upon inquiring into the matter, Roach learned that several employees and former managers felt that Rowland had problems with her `people skills.' Specifically, Roach learned that Rowland's supposed difficulty in checking her ambitions and her inability to delegate sometimes alienated those who worked with her." (American General, supra, 340 F.3d at p. 190.)
When Roach met with Rowland in 1996 to explain why she had not been promoted, "he recounted some of the reported problems and suggested that she needed to work on her people skills ...." (American General, supra, 340 F.3d at p. 190.) According to Rowland, when she pressed Roach further, "Roach stated plainly, `I just don't need another woman in this position, particularly one like Shelby Bennett.'" (Ibid.) "[W]hen Rowland had previously voiced her concerns to the same Shelby Bennett, a female district manager at American General, Bennett responded: `that's just life at American General. That's the way it is. The men run the company, and you just have to do what they say.'" (Ibid.)
As these cases illustrate, to say that discrimination was not the "but for" cause of an employment decision is not to say that discrimination played an insignificant role or that it necessarily played a lesser role than other, nondiscriminatory factors. Indeed, evidence that an employer does not "`need another woman in this position'" (American General, supra, 340 F.3d at p. 190) or that a company only promotes women who "walk ... femininely, talk ... femininely, dress ... femininely, [and] wear make-up" (Price-Waterhouse, supra, 490 U.S. at p. 235) may permit the jury to conclude that improper discrimination was a sufficient factor by itself to bring about an employment decision, even if the employer can show that legitimate factors also would have been sufficient, absent the discrimination, to produce the same decision. We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and even by itself determinative of an employment decision without also being a "but for" cause.
We believe that allowing a same-decision showing to immunize the employer from liability in circumstances like those facing Ann Hopkins and Anita Rowland would tend to defeat the purposes of the FEHA. Whether or not an employee in their respective positions would have been promoted in any event, the existence of facts from which a jury could find that improper bias was a substantial factor motivating the employer's decision is sufficient to establish discriminatory conduct that "foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of
Moreover, without such prevention and deterrence, a person in Hopkins's or Rowland's position may well decide against applying for a job, seeking a promotion, or persisting in a training program in view of an employer's demonstrated bias. An uneven playing field tends to discourage people from entering the competition. The understandable reluctance of an individual to submit herself to an employment process that is demonstrably stacked against persons who share her protected characteristic further insulates the employer's discriminatory practice from judicial sanction, while also "depriv[ing] the state of the fullest utilization of its capacities for development and advancement." (§ 12920.) Given the FEHA's statement of its purposes and the harms it sought to address, we cannot ascribe to the Legislature an intent to deem lawful any discriminatory conduct that is not the "but for" cause of an adverse employment action against a particular individual. When a plaintiff has shown that an employment decision has been substantially motivated by discrimination, its harms cannot be assessed solely by reference to its consequences for that individual. As we have said, the public policy against employment discrimination "`inures to the benefit of the public at large rather than to a particular employer or employee.' [Citation.]" (Rojo v. Kliger, supra, 52 Cal.3d at p. 90, italics added.) It was precisely to address these
In Price Waterhouse, Justice O'Connor cautioned that neither "stray remarks in the workplace," "statements by nondecisionmakers," nor "statements by decisionmakers unrelated to the decisional process itself" can establish, by themselves, that improper bias was in fact a motivating factor behind a particular employment decision. (Price Waterhouse, supra, 490 U.S. at p. 277 (conc. opn. of O'Connor, J.).) "Race and gender always `play a role' in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and about which they may comment in a perfectly neutral and nondiscriminatory fashion. For example, in the context of [Price Waterhouse], a mere reference to `a lady candidate' might show that gender `played a role' in the decision, but by no means could support a rational factfinder's inference that the decision was made `because of' sex." (Ibid.)
Given the wide range of scenarios in which mixed-motive cases might arise, we refrain from opining in the abstract on what evidence might be sufficient to show that discrimination was a substantial factor motivating a particular employment decision. In the present case, the jury was instructed under CACI No. 2500 to determine whether discrimination was "a motivating factor/reason" for Harris's termination. We hold that the jury should instead determine whether discrimination was "a substantial motivating factor/reason," and that the trial court on remand should determine in the first instance whether the evidence of discrimination in Harris's case warrants such an instruction.
We turn now to consider the issue of remedies. If a plaintiff has shown that discrimination was a substantial factor motivating a termination decision, but the employer has shown that it would have made the same decision in any event, what relief is available to the plaintiff?
We come to the same conclusion with respect to noneconomic damages, although the issue is closer. There is no question that an employment decision motivated in substantial part by discrimination inflicts dignitary harm on the affected individual, even if the employer would have made the same decision in the absence of discrimination. The same-decision showing is a hypothetical, counterfactual construct. In mixed-motive cases like Price Waterhouse and American General, what happened in actuality is that discrimination played a substantial role in the employment decision (or at least a jury could so find), even if discrimination was not a "but for" cause of the decision. For a person in Ann Hopkins's or Anita Rowland's position, the sting of unequal treatment can be quite real even if the challenged employment action would have occurred in any event.
Although we do not doubt the stigmatic harm that discrimination can cause, we are reluctant to find such harm compensable in damages under the FEHA when other, nondiscriminatory factors would have brought about the plaintiff's discharge. Theoretically, it may be possible to distinguish, for example, between a plaintiff's emotional distress resulting specifically from discrimination and the plaintiff's emotional distress resulting from the termination itself. Practically, however, as Harris's counsel conceded at oral argument, it is unrealistic to ask the trier of fact to parse the plaintiff's past mental state so finely and to award only the quantum of damages that corresponds to the emotional distress resulting specifically from discrimination rather than the termination itself if the employer makes a same-decision showing. When an employee is fired, and when discrimination has been shown to be a substantial factor but not a "but for" cause, we believe it is a fair supposition that the primary reason for the discharged employee's emotional distress is the discharge itself. Such distress is not compensable
At the same time, however, the unavailability of damages upon an employer's same-decision showing does not make a finding of unlawful discrimination an empty gesture. Such a finding has several key consequences. First, proof that an adverse employment decision was substantially motivated by discrimination may warrant a judicial declaration of employer wrongdoing. Declaratory relief, where appropriate, may serve to reaffirm the plaintiff's equal standing among her coworkers and community, and to condemn discriminatory employment policies or practices. (See Code Civ. Proc., § 1060 [a court may make a binding declaration of contested rights and duties].)
Second, upon a finding of unlawful discrimination, a court may grant injunctive relief where appropriate to stop discriminatory practices. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131 [87 Cal.Rptr.2d 132, 980 P.2d 846] [courts may grant injunctive relief under the FEHA to prevent discriminatory conduct from recurring]; cf. EEOC v. Ilona of Hungary (7th Cir. 1997) 108 F.3d 1569, 1579 [finding unlawful discrimination on the basis of religion under Tit. VII and upholding injunctive relief "where the individuals who were found to have discriminated remain the defendant's primary decision-makers"].)
Moreover, requiring an employer to absorb the costs of litigation for which its own wrongdoing is substantially responsible furthers the FEHA's goal of preventing and deterring unlawful employment practices. As explained earlier (ante, at pp. 229-231), the fact that discrimination does not result in compensable injury for a particular plaintiff does not mean that the employer's conduct will not have adverse consequences for other individuals or for society as a whole. A plaintiff's eligibility for reasonable attorney's fees and costs will cause the employer to internalize to some degree the significant social costs of its discrimination, thereby promoting the FEHA's goal of deterring such discrimination.
The City cites several cases not involving employment discrimination statutes in support of its contention that an employer's same-decision showing should be a complete defense to liability. In Bekiaris v. Board of Education (1972) 6 Cal.3d 575 [100 Cal.Rptr. 16, 493 P.2d 480] (Bekiaris), a terminated probationary teacher sought reinstatement on the ground that his termination was caused by his exercise of First Amendment rights rather than performance-related reasons alleged by school authorities. We held that if the school board would have dismissed the teacher notwithstanding its dissatisfaction with the teacher's exercise of constitutional rights, then the dismissal must be upheld. (6 Cal.3d at p. 593.) We said that "we cannot allow a teacher genuinely dismissed for valid causes to be reinstated because school authorities were also displeased with his exercise of constitutional rights," because "were [it] otherwise a teacher about to be dismissed for valid causes could insulate himself from dismissal simply by engaging in political activities offensive to his superiors." (Id. at fn. 12.)
Bekiaris presaged the United States Supreme Court's decision in Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274 [50 L.Ed.2d 471, 97 S.Ct. 568] (Mt. Healthy), where a teacher similarly alleged he was discharged for exercising his First Amendment rights and sought reinstatement with backpay. The high court said that once a plaintiff shows that the protected speech was a "`substantial'" or "`motivating factor,'" the burden shifts to the employer to show "by a preponderance of the evidence that it would have reached the same decision as to [the plaintiff] even in the absence of the protected conduct." (429 U.S. at p. 287.) If the employer makes such a showing, then the dismissal is lawful, and the school board need not rehire the teacher. (Id. at pp. 285-286.) The high court explained that the employee should not be put "in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing." (Id. at p. 285.)
In Williams v. City of Los Angeles (1988) 47 Cal.3d 195 [252 Cal.Rptr. 817, 763 P.2d 480] (Williams), a police officer was discharged without receiving proper advisements under the Public Safety Officers Procedural Bill of Rights Act (§ 3300). Citing Mt. Healthy and Bekiaris, we held that "reinstatement is not mandated if the employer can demonstrate that it would have reached the same decision even had the employee not engaged in protected conduct." (Williams, at p. 205.) In addition, in Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721 [175 Cal.Rptr. 626, 631 P.2d 60] (Martori Brothers), a case arising under the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (Lab. Code, § 1140 et seq.), we considered whether an employee was entitled to reinstatement
The City argues that we should follow these cases and hold that an employer's same-decision showing defeats liability under section 12940(a). However, the cases above focused on the unavailability of reinstatement and backpay where such remedies would result in a windfall to the discharged employee. (See Transportation Management, supra, 462 U.S. at pp. 397-403; Mt. Healthy, supra, 429 U.S. at pp. 276, 285; Williams, supra, 47 Cal.3d at pp. 204-205; Martori Brothers, supra, 29 Cal.3d at pp. 729-730; Bekiaris, supra, 6 Cal.3d at pp. 580, 592-593.) Our opinion today affirms that reinstatement and backpay are unavailable under the FEHA upon an employer's same-decision showing because a terminated employee should not be put in a better position than she would have occupied had the discrimination not occurred. What the cases above do not hold is that a same-decision showing precludes a finding of unlawful motive that provides a predicate for declaratory or injunctive relief. Indeed, in Williams, even as we held that "the trial court abused its discretion in ordering Williams reinstated ..." (Williams, supra, 47 Cal.3d at p. 206), we said "[i]t is uncontested that his rights were violated ..." under the applicable statute (id. at p. 201).
We now address a few remaining issues raised by Harris and then summarize our holding in this case.
Harris argues that if we permit any type of same-decision showing, we should hold the employer to a higher standard of proof. A same-decision
The rationale for requiring clear and convincing evidence is similar to the rationale for shifting the burden to the employer to negate "but for" causation upon a showing that discrimination substantially motivated an employment decision. As Day v. Matthews (D.C. Cir. 1976) 530 F.2d 1083 explained in the context of Title VII: "`Unquestionably, it is now impossible for an individual discriminatee to recreate the past with exactitude.' [Citation.] Such a showing is impossible precisely because of the employer's unlawful action; it is only equitable that any resulting uncertainty be resolved against the party whose action gave rise to the problem." (Day, at p. 1086, fn. omitted.) In Price Waterhouse, however, the high court rejected the clear and convincing evidence standard, noting that exceptions to the preponderance of the evidence standard generally applicable to civil litigation "are uncommon, and in fact are ordinarily recognized only when the government seeks to take unusual coercive action — action more dramatic than entering an award of money damages or other conventional relief — against an individual." (Price Waterhouse, supra, 490 U.S. at p. 253 (plur. opn. of Brennan, J.); see id. at p. 260 (conc. opn. of White, J.); id. at p. 261 (conc. opn. of O'Connor, J.).) As examples, the plurality cited cases involving termination of parental rights, involuntary commitment, deportation, and denaturalization. (Id. at p. 253.) The plurality further noted: "Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief, see, e. g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 [41 L.Ed.2d 789, 94 S.Ct. 2997] (1974) (defamation), and we find it significant that in such cases it was the defendant rather than the plaintiff who sought the elevated standard of proof — suggesting that this standard ordinarily serves as a shield rather than, as [plaintiff] seeks to use it, as a sword." (Price Waterhouse, at p. 253.)
In California, we have recognized that "`the standard of proof may depend upon the "gravity of the consequences that would result from an erroneous determination of the issue involved."' [Citation.] The default standard of proof in civil cases is the preponderance of the evidence. (Evid. Code, § 115.) ... [¶] We applied the clear and convincing evidence standard, for example, in Conservatorship of Valerie N. [(1985)] 40 Cal.3d 143, 168 [219 Cal.Rptr. 387, 707 P.2d 760], to ensure that a conservator's decision to authorize sterilization of a developmentally disabled conservatee was truly in the latter's best interests. We have also applied the clear and convincing evidence standard to findings necessary to terminate parental rights [citation] and to findings supporting the discipline of judges [citations]. The Courts of Appeal have required clear and convincing evidence of a person's inability to provide for his or her personal needs as a prerequisite to the appointment of a conservator [citation], and of a conservatee's incompetence to accept or reject
But we have not applied a heightened proof standard to cases with ordinary civil remedies, and we are aware of no mixed-motive case since Price Waterhouse and the 1991 amendments to Title VII (which also declined to adopt a clear and convincing evidence standard) that has applied anything but a preponderance of the evidence to an employer's same-decision showing. Harris points to Labor Code section 1102.6, which requires the employer to prove a same-decision defense by clear and convincing evidence when a plaintiff has proven by a preponderance of the evidence that the employer's violation of the whistleblower statute (id., § 1102.5) was a "contributing factor" to the contested employment decision. Yet the inclusion of the clear and convincing evidence language in one statute does not suggest that the Legislature intended the same standard to apply to other statutes implicating the same-decision defense. (See Scientific Cages, Inc. v. Banks (1978) 81 Cal.App.3d 885, 889 [146 Cal.Rptr. 780] ["`[T]he use of interpretation by reference to analogous but unrelated statutes ... is to be used with caution "for the reason that by way of contrast an inclusion or exclusion may show an intent exactly contrary to that expressed by the analogous legislation."'"].) Because employment discrimination litigation does not resemble the kind of cases in which we have applied the clear and convincing standard, we hold that preponderance of the evidence is the standard of proof applicable to an employer's same-decision showing.
Harris also contends that even if we conclude that a jury should receive some type of same-decision instruction in cases potentially involving mixed motives, the instruction should not have been given here because the same-decision showing was an affirmative defense that the City did not plead in its answer to Harris's complaint. We hold that the City's failure to plead this defense did not bar such an instruction.
In the present case, the City pleaded in its answer that "[a]ny alleged adverse employment actions of which plaintiff complains ... were not based on plaintiff's gender and/or sex, pregnancy or any other alleged discriminatory practice, but instead were based on one or more legitimate nondiscriminatory reasons. Nor were any of the employment actions of defendant taken under pretext." This put Harris on notice that the City intended to defend on the basis that it had not discriminated against her and had a legitimate reason for discharging her. The City's defense at trial was consistent with that intention. Harris would not have been prejudiced by an instruction that informed the jury how to arrive at a verdict if the jury partly believed plaintiff's evidence of discrimination and partly believed the City's defense that the discharge was nondiscriminatory. Therefore, the fact that the City did not plead a same-decision defense did not adversely affect Harris's substantial rights, and the omission did not bar the trial court from giving a same-decision instruction.
In the present case, the trial court gave CACI No. 2500, which required the jury to determine whether discrimination was "a motivating factor/reason" for Harris's termination. The City requested that the jury be instructed pursuant to BAJI No. 12.26: "If you find that the employer's action, which is the subject of plaintiff's claim, was actually motivated by both discriminatory and nondiscriminatory 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."
In light of today's decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer's action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages. The trial court on remand should determine in the event of a retrial whether the evidence of discrimination in Harris's case warrants a mixed-motive instruction.
The judgment of the Court of Appeal overturning the damages verdict is affirmed, and the cause is remanded for further proceedings consistent with this opinion.
Cantil-Sakauye, C. J., Kennard, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
