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Harris v. Santa Monica (SC S181004A 2/7/13) FEHA/Mixed Motive

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.

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