Mixed Motives in FEHA Cases

The U.S. Supreme Court in Gross v. FBL Fin. Servs. (blogged here) limited "mixed motive" cases under federal law. The Court said there is no need for that defense in age discrimination cases under the federal ADEA. Employees must prove "but-for" causation, so the employer need not prove it would have made the same decision with or without additional discriminatory motivation. The defense remains viable in discrimination cases brought under Title VII.

Anyway, in California, the mixed motive is alive and well. The Court of Appeal in Harris v. Santa Monica, opinion here, held that the trial court prejudiced the city of Santa Monica by refusing to instruct the jury that even if discrimination played a role in Harris' termination, the City was entitled to win if it would have made the same decision regardless.

The opinion is noteworthy for a few reasons:
- it reinforces the relevance of employment at will in discrimination cases.
- it explains clearly that the employer's decision cannot be attached for being "unwise" or "factually incorrect" if it is not motivated by discrimination.
- it revives the old "BAJI" jury instruction on mixed motive cases, given the new CACI instructions do not contain model for mixed motive cases.
- "mixed motives" need not be pleaded as an affirmative defense because it is not "new matter."