Tag Archives: FEHA

Recent Mixed-Motive Case Is A Mixed Bag For California Employers

1184335059_0505In February, the California Supreme Court issued an important decision applying the mixed-motive defense to employment discrimination cases brought under California’s Fair Employment and Housing Act (FEHA). First, a brief bit of background: according to the mixed-motive defense, available in federal employment discrimination claims brought under Title VII, if an employer had both discriminatory and nondiscriminatory reasons for firing an employee, the employer should not be liable if the nondiscriminatory reason alone was sufficient to warrant termination of the employee.

In Harris v. City of Santa Monica, a bus driver was terminated for performance-related reasons shortly after she notified her supervisor that she was pregnant. She sued the City alleging the termination was an instance of pregnancy discrimination. At trial, the City asked the court to instruct the jury that, if the City proves it would have reached the same decision to terminate the driver even without a discriminatory motive, then it could not be held liable. The court refused this instruction and instead instructed the jury that if the bus driver proved her pregnancy was “a motivating factor/reason for the discharge” then the City was liable. The jury found the plaintiff’s pregnancy was a motivating factor and awarded her $177,905 in damages and $401,187 in attorney’s fees.

The City appealed and the Court of Appeal determined that the proposed mixed-motive instruction should have been given. It reversed and remanded. Harris sought, and the California Supreme Court granted, review of the Court of Appeal decision.

The Supreme Court held that the instruction should have required the plaintiff to establish, not just that discrimination was a motivating factor or reason, but that it was “a substantial motivating factor/reason” for the termination.* If the plaintiff makes this showing, the employer then has the opportunity to limit its exposure by proving by a preponderance of the evidence that it would have made the same decision for nondiscriminatory reasons, such as job performance. If the jury finds in favor of the employer on this issue, the plaintiff may not recover compensatory damages, back pay or reinstatement, though she may still seek and recover injunctive and declaratory relief. Additionally, she may stll be entitled to recover her attorney’s fees in prosecuting the lawsuit under FEHA.

At first blush, Harris would seem to be a positive development for California employers–and it is. The problem is that employment discrimination suits tend to be attorney-fee driven, with the result that lawyers will file and aggressively pursue marginal liability cases with the hope of striking it big with an attorney fee award. Consider the trial result in Harris, in which the attorney fees sought were over twice the damages award. The practical impact is that the employer is punished (though an attorney fee award) even when it otherwise succeeds in its mixed-motive defense.

*Emphasis added.


California’s FEHA Will Explicitly Cover Religious Dress And Grooming Practices

trfredSome employers struggle with reasonable accommodation of an employee’s religious preferences. Effective January 1, 2013, the California Fair Employment and Housing Act (FEHA) definition of “religious creed” will be amended to explicitly include “religious dress practice” and “religious grooming practice.” “Religious dress practice” includes the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed, while “religious grooming practice” includes all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed. The terms “religious dress” and “grooming practices” are to be broadly construed.

I hold the (perhaps naive) belief that, when most employers violate prohibitions against religious discrimination, it’s often by accident. So I try to provide examples.  The HR Gazette provides these:

“‘[R]eligious dress’ means virtually any piece of clothing or accessory that signifies or expresses a religious creed or belief.  The most common examples are a hijab (the headscarf worn by Muslim women), the dastar (the turban worn by Sikh males) or a yarmulke (the skullcap worn by Jewish males).  Religious dress could also include jewelry such as a Christian cross, Star of David, or an Ankh.”

“[A]n employer would be required to accommodate an employee’s religious belief by allowing him to wear a beard or long hair in the workplace.  Some religions require men and women to shave their head.”

Here are a couple of ripped-from-the-headlines cases to further illustrate:

1. A certain “preppy” store refused to hire a woman when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer argued that it had a strict “Look” policy in order to insure a unified “preppy” brand image. The jury awarded the woman $20,000.

2. A fast food chain was sued after terminated a devout Nazirite due to his failure to cut his hair. Nazirites do not cut their hair as a sign of devotion to God. The employee had worked for six years without cutting his hair (in fact, he had not cut his hair since he was 15 years old) before the company tried to enforce its grooming policy that required him to cut his hair. The chain entered into a consent decree whereby it settled the case and agreed to pay the employee $27,000, and also to adopt a formal religious accommodation policy.

Employers subject to FEHA must reasonably accommodate an individual’s religious creed. The amendments provide that an action that segregates or hides an individual, either from other employees or the public, because of that individual’s religious dress or grooming practices is not a reasonable accommodation of an employee’s religious dress or grooming practices.


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