California's Fair Employment and Housing Act prohibits an employer from taking an adverse employment action against a person because of the person's race, sex, disability, or other protected characteristic.  But what happens when an employer takes an adverse action against an employee which is motivated both by lawful and unlawful reasons – a so-called "mixed motive"?  This was the question confronting the California Supreme Court in Harris v. City of Santa Monica, which was decided on February 7, 2013.

Harris was a probationary bus driver employed by the City of Santa Monica.  She claimed she was fired because she was pregnant, while Santa Monica claimed she had been fired for poor job performance -- she had gotten into two preventable accidents and came to work late twice.  After receiving an unfavorable employment evaluation, Harris alleged that, during a chance encounter with her supervisor, Reynoso, she told Reynoso that she was pregnant.  Seemingly displeased with that news, Reynoso's response was, "Well, what are you going to do?  How far along are you?"  Reynoso then asked Harris for a doctor's note, and on the same day she gave it to him, Reynoso received a list of probationary drivers who weren't meeting standards for continued employment – and Harris' name was on it.  She was fired two days later.

In employment cases where terminations don't involve "mixed motives," the California Supreme Court had previously adopted a three-stage burden shifting test.  Under that test, an employee has the initial burden of establishing that an employer took an adverse action based on a prohibited criterion.  If the employee meets that burden, then the burden shifts to the employer to establish that the adverse action was taken for a legitimate, nondiscriminatory reason.  If the employer meets its burden, then the burden shifts back to the employee to demonstrate that the employer's proffered reason was just a pretext.  As the Supreme Court noted in Harris, however, this burden-shifting test assumes that there is a single "true" reason for an adverse action, and in "mixed motive" terminations, there is no single "true" reason. 

The California Supreme Court therefore modified its burden-shifting test for "mixed motive" terminations, and now requires an employee to demonstrate that discrimination was a "substantial factor motivating the adverse employment action."  However, if an employer can establish that it would have taken the adverse employment action even apart from any unlawful reasons, then the employee can't be awarded money damages, back pay, or reinstatement.  Harris doesn't let employers completely off the hook, though, because an employee in these circumstances could still obtain declaratory or injunctive relief, and could still be eligible for attorneys' fees.  The California Supreme Court refused to rule these remedies out, because the Fair Employment and Housing Act is designed to prevent, deter, and redress unlawful discrimination in the workplace.