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Gov. Brown Vetoes Pro Plaintiff Mixed-Motive Bill

Posted in Discrimination, Labor Law, New Legislation and Regulations

This year, lawmakers and their plaintiff’s bar buddies asked Governor Jerry Brown to recast awards in so-called mixed-motive discrimination cases. Brown vetoed Senate Bill 655, leaving in place the State’s high court ruling in Harris v. City of Santa Monica in February 2013. In that 6-0 decision, Brown’s appointee Liu said a workplace firing based both on discrimination and legitimate reasons can trigger attorney fees and declaratory or injunctive relief for a plaintiff but not damages, back pay or reinstatement.

SB 655 was co-sponsored by plaintiff’s attorneys, who responded to the Harris decision by trying to recast claims brought under the Fair Employment and Housing Act in a more plaintiff-friendly light. In Harris, the court said plaintiffs had to prove that discrimination was a "substantial" factor in their termination. SB 655 defined "substantial" as "more than a remote or trivial factor" but not necessarily "the only or main cause" behind the firing.

The legislation would also have allowed employees who proved mixed-motive discrimination to collect statutory penalties of up to $25,000 in addition to injunctive relief, attorney fees and costs, including payments to expert witnesses.

Brown disagreed with those changes and backed the ruling by his recent appointee, stating: "I think Supreme Court Justice Goodwin Liu got it right in his well-reasoned opinion in that case," Brown wrote in his veto message, "and I see no reason for further legislative intervention."

The Supreme Court decision and subsequent legislation stemmed from the case of Wynona Harris, a driver for Santa Monica’s bus transit system. In the months after she was hired in October 2004, Harris was involved in two accidents causing damage to the bus and a parked car. In the spring of 2005, she also had two "miss-outs" for failing to notify her supervisor that she was going to miss a shift start.

In May 2005, Harris told her boss she was pregnant. The supervisor asked for a doctor’s note clearing her to work and accordingly to Harris, reacted with "seeming displeasure." Harris provided the note four days later and on that same day, she was included on a list of probationary drivers who weren’t meeting the employer’s standards. Two days later she lost her job. Harris sued for pregnancy discrimination.

A trial court found that Harris’ pregnancy was "a motivating factor" in her discharge and awarded her $177,905 in damages and more than $400,000 in attorney fees. An appellate panel reversed, ruling that the trial court should have instructed the jury that if it found a mix of discriminatory and legitimate motives behind Harris’ firing, the City of Santa Monica could escape liability by demonstrating that the legitimate reason alone would have led the driver’s supervisors to terminate her. Ultimately, the California Supreme Court held that plaintiffs had to prove that discrimination was a "substantial" factor in their termination and not merely one of several reasons, in order to be entitled to damages.

In an often used tactic by the plaintiff’s bar, when one branch of government rules against them, they move to another more, friendly branch of government. Here the legislature welcomed them with open arms. However, the Governor had the last word. Hopefully this will close the book on this issue.