Pregnancy Discrimination in California and the Mixed-Motive Defense

Discrimination in the workplace can rarely be characterized as blatantly obvious and straightforward. More often, discrimination occurs in such a way that the employee is left wondering whether the ways in which he or she has been treated qualifies as discrimination. When the employee has exhibited problematic behavior in the past, it is easy to wonder whether an employer’s seemingly discriminatory actions were justified based on performance rather than a factor such as gender, race or disability.The California Supreme Court will soon be questioning whether employers can assert a “mixed-motive defense” in cases of alleged pregnancy discrimination. This defense would allow employers to assert that even if they discriminate against women due to their status as pregnant, if the employer would have terminated the employee anyway due to factors like poor performance, the employer will not be allowed to be held liable for the pregnancy discrimination. Wynona Harris and the City of Santa MonicaThe California Supreme Court has decided to review the case of Wynona Harris. Harris was employed as a Big Blue Bus (BBB) driver in Santa Monica for roughly six months before her employment was terminated. Her performance record was mixed. She had received relatively favorable performance reviews and compliments from her supervisor, but had also suffered two minor accidents during her training period and had failed to call in to BBB that she would have to miss a shift in the time period required by her employers. Though she had been internally labeled as an employee who was not currently meeting the standards for continued employment, Harris was not advised of this fact. Three days after she informed her employer that she was pregnant, she was terminated.The City of Santa Monica has denied that it terminated Ms. Harris for any reason other than her poor performance. Regardless, the City insists that that the jury which originally tried the case should have been instructed on the “mixed-motive” defense, which it was not. The original jury was instead instructed to find the City liable for discrimination if Ms. Harris’s pregnancy was a motivating factor in the termination of her employment. So instructed, the jury awarded Ms. Harris nearly $200,000 in damages and $400,000 in attorney’s fees. The City insists that had the jury been instructed on the mixed-motive defense, the case would have been decided differently.The Mixed-Motive DefenseFederal and California law both prohibit discrimination based on sex. Pregnancy discrimination is considered sex discrimination and is thus prohibited. The mixed-motive defense does not assert that pregnancy discrimination is acceptable in and of itself. Instead, the defense asserts that if an employer terminates an employee based on both discriminatory and non-discriminatory reasons, and the employer would have terminated the employee based on the non-discriminatory reasons had the discriminatory ones not been present, the employer cannot be held liable for wrongful termination based on discrimination. The rationale behind the mixed-motive defense is that no discriminatory harm actually befalls an employee if their employment ultimately would have been terminated due to non-discriminatory reasons.If the Court rules that the mixed-motive defense may be legitimately asserted in discrimination cases, the effects would be dramatic. Essentially, employers would be granted far greater power in discrimination cases, as they would no longer be compelled to deny discriminatory behavior. All that an employer would need to do to escape liability for prohibited behavior is justify the termination of its employees on performance or other legitimate grounds; even if the employer’s primary motivation is discriminatory.The Court will likely rule on whether the mixed-motive defense is allowed in all discrimination cases or only in cases where certain fact-patterns are present. The Court will also likely clarify whether or not the defense will shield employers from liability completely or simply mitigate it. Regardless of how the Court rules, the impact of the Harris case is likely to influence countless cases that will be decided subsequently.For Further ReferenceThe law protects employees from many kinds of discrimination. If you feel that you or someone you care about has been discriminated against by an employer, please contact an experienced employment law attorney who can advise you of your options.