In Harris v. City of Santa Monica (Feb. 7, 2013) Case No. S181004, the plaintiff, a former Santa Monica city bus driver, alleged that the defendant city had discharged her after learning she was pregnant. The city argued that it discharged plaintiff for unsatisfactory performance while a probationary employee. At trial, the trial court issued an instruction that told the jury that the plaintiff had to prove that her pregnancy was a “motivating factor/reason” for her discharge. The trial court rejected the city’s request that it instruct the jury that if it found that the discharge was caused by discriminatory and nondiscriminatory reasons, it also had to decide whether the employer had proved by a preponderance of the evidence that the nondiscriminatory reason, standing alone, would have induced it to make the same decision.
The Court held “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.”