What Does it Mean to Be Terminated "Because Of" A Protected Characteristic -- Harris v. City of Santa Monica

Under California law it is illegal to terminate an employee "because of" his race, gender, religion, etc.  In Harris v. City of Santa Monica, the California Supreme Court delved into the question of what that means where an employer had "mixed motives" for a decision.

In a mixed-motives case . . . there is no single “true” reason for the employer's action. What is the trier of fact to do when it finds that a mix of discriminatory and legitimate reasons motivated the employer's decision? That is the question we face in this case. 

Such a "mixed motive" scenario scenario might arise, for example, where a decisionmaker clearly considered an employee's race (or other protected status) in deciding to terminate.  But where there is also clear evidence (such as poor performance or misconduct) that the employer would inevitably have made the same decision even if race had not been considered.       

[W]hat legal consequences flow from an employer's proof that it would have made the same employment decision in the absence of any discrimination. To be clear, when we refer to a same-decision showing, we mean proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.

This question led the Court down the rabbit hole of what might be termed the metaphysics of causation.   For example, the Court considered at length whether an employee who would have been terminated anyway has still been discriminated against if his protected status also played a  "substantial" or "motivating"  factor in the employer's mind.   In the end, the Court emerged with the following standard:

We hold 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.

Harris v. City of Santa Monica is important insofar as it clarifies the language that courts should include in their instruction to the jury.  However, I am skeptical that such granular semantic distinctions will make any difference to the deliberations of real jurors.  Jurors don't need an instruction to know what "because of" means.  They will continue to evaluate the credibility of witnesses and the totality of evidence and will arrive at their own gut level determination of whether the plaintiff was discriminated against "because of" his protected status.         


Internal Sexual Harassment Complaints are Protected by Anti-SLAPP statute -- Aber v. Comstock

California's so-called anti-SLAPP statute, CCP section 425.16 et seq., is a powerful weapon for quickly disposing of lawsuit based on allegations that arise out of free speech or "public participation."   To proceed with such a lawsuit the plaintiff must present admissible evidence establishing that he is "likely to prevail."   Moreover, he must normally make this heightened showing at the start of the case without the benefit of any discovery.  Most lawsuits which are covered by the anti-SLAPP statute fail to survive this rigorous test and are dismissed, which also triggers an obligation to pay the other side's attorney fees.  

In Aber v. Comstock the Califonia Court of Appeal has significantly expanded the reach of the anti-SLAPP statute by extending its protection to purely internal complaints of sexual harassment.  As the court explained:

 Aber argued that her statements to Bush, the Kluwer HR manager, are protected under section 425.16, subdivision (e)(1) and (e)(2), as statements prior to litigation or other official proceedings. Her theory was that the statements were necessary to address a commonly used affirmative defense by an employer in a sexual harassment case—a defense, not incidentally, that Kluwer has in fact asserted against Aber here.  We agree.

As a result, the accused harasser's lawsuit for defamation based on these internal allegations was dismissed under the anti-SLAPP procedure.  Aber thus serves as a cautionary tale to any employer or co-employee who might otherwise be tempted to file a cross-complaint against a sexual harassment accuser -- unless your counterclaim is exceptionally strong on its face it will likely backfire and result in liability for attorney fees under the anti-SLAPP statute.