In this blog, I’ve written about mixed motive jury instruction twice. In the first entry, we explored whether mixed motive jury instructions with respect to the ADA were even possible after Gross v. FBL Financial. In the second, we explored whether where there is more than one cause of action to be alleged and mixed motive was treated differently with respect to the laws involved, a mixed motive instruction would still be possible. Gross said that with respect to the age discrimination in employment act, that, “but for” is the standard that must be used for causation purposes. However, that doesn’t answer the question as to what happens if you have more than one cause. You will see, as our prior blog entries on mixed motive make clear, some case law out there that says that, “but for” does not mean sole cause since you can have more than one necessary cause. Also, most employment decisions have more than one cause. Oftentimes, there may be a mix of bad performance and discriminatory conduct. If sole cause is the standard, then many of these plaintiffs are going to be out of luck. Problem is, is that if you do allow for multiple causes, what is the standard you use. Perhaps, we can analogize to tort law. Everybody who goes to law school learns in tort law (civil wrongs), that if you have one cause, the standard is, “but for” causation. If you have more than one cause, the standard is, “substantial factor.” Might a similar system work with respect to employment discrimination?

Before moving further, in the last entry that I wrote dealing with mixed motive, I alluded to legislative history that indicated the indirect burden of proof was still in play with respect to ADA claims. That same legislative history also indicates that at least whenever the words “on the basis of” appears, that mixed motive, whatever that may mean, is also still in play. In particular, the house report on the ADA amendments act says that the reason why “on the basis,” was inserted into the ADA was to ensure that the, “more direct language, structured like title VII” placed the emphasis on the critical inquiry of whether a qualified person with a disability had been discriminated against on the basis of disability and not on the preliminary question of whether a particular person was even a person with a disability and therefore subject to the protection of the act in the first place. H.R. Rep. 110-730(I) at discussion of, “Discrimination on the Basis of Disability.” That same legislative history immediately after this makes clear that the indirect burden of proof is also in play and that is why Congress purposely left in the term, “qualified” when they amended the ADA with the ADAAA. Id.

The California Supreme Court in Harris v. City of Santa Monica, 294 P.3d 49 (Cal. 2013), was faced with this situation where a person sued under their antidiscrimination law, the fair employment and housing act, for prepregnancy discrimination. It was one of those situations where the employer clearly had dual motives. That is, they terminated her for work performance issues, but they also terminated her due to discrimination based on pregnancy. See id. at 51-53. In this case, it was the defense that asked for a mixed motive instruction. That is, they wanted an instruction that said it was a defense if it could show that it had a legitimate reason to make the same decision and that it would’ve made that decision regardless of the pregnancy discrimination. The court rejected that instruction and instead gave an instruction saying that the plaintiff could prevail if they showed that the pregnancy discrimination was a motivating factor in the adverse action.

The California Supreme Court begins their discussion by noting that the fair employment and housing act contained the phrase “because of,” with respect to causation. However, the California Supreme Court said that isn’t the end of the matter because when you investigated, three possible meanings of, “because of” are possible. First, it could mean, “but for.” second, it could mean, “substantial factor.” Finally, it could mean, “motivating factor.” The court said that the legislative history with respect to the Fair Employment Housing Act was absent with respect to what, “because of” might mean. Accordingly, it looked to title VII of the Civil Rights Act.

In looking to title VII of the Civil Rights Act, the court referred to the Price Waterhouse v. Hopkins case, 490 U.S. 228 (1989), where the United States Supreme Court held that a defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s prohibited characteristic into account. The Supreme Court of the United States also held that the burden shifted to the defendant once the plaintiff was able to show a motivating factor whereupon the defendant would have to show that they would have made the same decision at the time even without the discrimination in order to escape liability. The California Supreme Court then notes that the Civil Rights Act of 1991 overturned Price Waterhouse with respect to the liability phase when it added language to the statute saying that while liability cannot be completely circumvented if an employer acted in motivation based on the prohibited characteristic, the remedy would be limited (a conclusion backed up both by the legislative history of the civil rights amendments and by what Gross says with respect to how the age discrimination in employment act is not hooked into motivating factor while the Civil Rights Act is).

The California Supreme Court goes on to mention particular sections of the Fair Employment Housing Act that talk about the purposes behind that Act. In particular, the Act says that it is a public policy of the state of California to ensure that discrimination in employment does not occur when it is based upon discrimination on the basis of various prohibited characteristics. That Act also goes on to say that to be free of discrimination in employment on the basis of a prohibited characteristic, is a civil right in California. The California Supreme Court noted that in light of those purposes, they have held that the policy promoting the right to seek and hold employment free of prejudice is a fundamental one.

The California Supreme Court then turned to how mixed motive was going to work. In particular, they noted that the Fair Employment Housing Act has specific language in it talking about how the remedies need to be effective so as to deter and prevent unlawful employment practices (with respect to remedies, the ADA does not contain as strong of a statement. However, it does say that one of the purposes of the law is to, “provide clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA.”). See 42 U.S.C. 12101(b)(2).On the other hand, the court was not looking to grant plaintiff a windfall either. Therefore, to the California Supreme Court, “substantial factor” was the standard that makes the most sense to strike the suitable balance between effective remedies and not providing a windfall to plaintiff. The California Supreme Court then goes on quite a bit about the justification for reaching the conclusion that “substantial factor,” is the way to go. In short, the way it will work in California with respect to the Fair Employment Housing Act is that a plaintiff must first show by a preponderance of the evidence that discrimination was substantial factor motivating his or her termination. Once that happens, the employer gets to demonstrate that legitimate, nondiscriminatory reason would’ve led it to make the same decision at the time. If they can do that by a preponderance of the evidence, then the plaintiff can still prevail, but like title VII the remedies are limited.

What does this all mean for the Americans with Disabilities Act? First of all, substantial factor is a much easier concept to deal with then motivating factor, which is consistent with the purpose of the ADA desiring clear enforcement standards. Lawyers hate uncertainty unless it is to their advantage. It is becoming increasingly clear, that “but for,” does not mean sole cause. See my blog first blog entry on mixed motive.. The second blog entry on mixed motive echoes this point as well. Further, as mentioned above, the legislative history is such that Congress had a very specific intent in mind when a change “because of,” to, “on the basis of” with respect to causation. That is, Congress wanted that change to signify language more in tune with the Civil Rights Act. Finally, the Supreme Court has agreed to hear a case to decide the mixed motive question with respect to a retaliation case under title VII, Nassar v. University of Texas Southwestern medical Center(title V of the ADA, which covers retaliation, also uses “because of,” language).

Once again, this post looks a little bit differently than the others. As mentioned previously, I have not seen blogs that use the formal citation style for formal legal writing. Thus, I have moved away from that quite a bit in this entry. That said, there are times when a cite is absolutely needed and for those times you will find the citation. Otherwise, I am going to try and stay away from formal citation in blog entries in the future (I know I said this once before the this time I think I mean it:-)