Harris v. City of Santa Monica: Discrimination, Same Decision, and FEHA Remedies

An employer’s lawful reason for firing someone does not erase proof that discrimination also drove the decision. In Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013), the California Supreme Court held that an employee proves a Fair Employment and Housing Act (FEHA) violation when discrimination substantially motivated a termination. If the employer then proves it would have made the same decision for lawful reasons, that showing limits the remedies rather than wiping out the violation. Id. at 211, 225–26, 241.

What happened to the Santa Monica bus driver

Wynona Harris was a probationary driver for the city’s Big Blue Bus service. Her record included two preventable accidents, two “miss-outs” under the city’s attendance rules, and a performance review calling for further development. A miss-out meant failing to give at least an hour’s warning before missing an assigned shift. The city said those performance issues justified discharge. Harris said pregnancy discrimination did. She disclosed her pregnancy to a supervisor, supplied a physician’s note allowing her to work with restrictions, and was fired shortly afterward. Her evidence included the supervisor’s reaction to the pregnancy disclosure; the city pointed to the contemporaneous performance record and a list of probationary drivers who were not meeting standards. Harris, 56 Cal. 4th at 211–13.

The jury was asked whether pregnancy was a motivating reason for discharge. It found for Harris and awarded damages. The trial court had rejected the city’s requested instruction addressing a decision made for both lawful and unlawful reasons. The Court of Appeal set aside the verdict and ordered further proceedings. The Supreme Court agreed that the damages verdict could not stand but rejected the city’s proposed rule that a same-decision showing eliminated liability altogether. Id. at 213–14, 241–42.

The employee must show substantial motivation

The FEHA inquiry starts with a particular employment decision. Biased thoughts or isolated remarks, without a connection to that decision, do not establish a FEHA termination claim. The employee must prove, by a preponderance of the evidence, that an unlawful criterion was a substantial motivating factor. The court expressly rejected an instruction that asked only whether discrimination was a motivating factor. Both direct and circumstantial evidence may support the required inference. Harris, 56 Cal. 4th at 230–32, 241–42.

This distinction matters in a mixed record. Timing and a supervisor’s words may support an inference of bias, while documented performance concerns may support a legitimate explanation. The court did not decide that Harris’s proof ultimately met the substantial motivating factor standard; it left the trial court to assess the evidence and appropriate instruction on remand. Id. at 211–14, 231–32, 241–42.

The employer’s same-decision showing changes the available relief

Once substantial discriminatory motivation is found, the employer can prove that lawful reasons alone would have produced the same decision at the time it acted. The employer must prove this by a preponderance of the evidence, based on reasons that actually influenced the decision. If the showing succeeds, the employee cannot obtain damages, backpay, or reinstatement for that termination under the FEHA. Harris, 56 Cal. 4th at 232–35, 237–40.

The unlawful discrimination finding still has force. Depending on the record, declaratory or injunctive relief may address discriminatory practices. The court may award reasonable attorney fees and costs; the amount reflects the degree of success and is not automatic. The court connected that result to the FEHA’s public purpose of preventing discrimination, even where the employee would have lost the job for lawful reasons. Id. at 225–26, 233–35.

Pleading and jury instructions remain consequential

An employer seeking the same-decision remedy limitation should plead it as an affirmative defense. Santa Monica had not used that precise label, but its answer asserted that legitimate, nondiscriminatory reasons supported the discharge. On the record before the court, the omission did not deprive Harris of notice or affect her substantial rights. That case-specific result does not make affirmative pleading optional. An employer may deny discrimination and, alternatively, argue that its lawful reason would have led to the same decision if a jury finds mixed motives. Harris, 56 Cal. 4th at 239–41.

The instructions must keep the questions separate: Did discrimination substantially motivate the decision, and, if so, did the employer prove the same decision would have occurred for lawful reasons? The second finding limits remedies; it does not retroactively make a substantially discriminatory decision lawful. The Supreme Court affirmed the reversal of the damages verdict and remanded; it did not itself resolve every fact dispute about Harris’s discharge. Id. at 241–42.

What a California FEHA record should preserve

For an employee, a useful record ties the protected characteristic to the actual decisionmakers and timing, while addressing the employer’s stated reasons with specific evidence. For an employer, the contemporaneous decision record should show which performance or business grounds actually mattered and whether they would have produced the same outcome independently. The pleadings and proposed instructions must reflect the distinct liability and remedy questions. These are evidentiary lessons from Harris, not a prediction of any individual claim’s result. Id. at 211–14, 230–42.

Distinction from Labor Code section 1102.6

Harris should not be confused with California Labor Code section 1102.6. The court expressly contrasted that whistleblower statute’s clear-and-convincing same-decision burden with the FEHA preponderance standard it applied here. Different claims can require different tests. Id. at 238–39. Our Lawson case analysis addresses the separate whistleblower framework.

Summary of holdings

• FEHA termination liability requires discrimination to be a substantial motivating factor, not merely present in the background.
• A proven lawful same-decision showing removes damages, backpay, and reinstatement for that termination, but not the finding of discrimination.
• Declaratory or injunctive relief may remain available to address discriminatory practices even when damages are barred.
• Reasonable attorney fees and costs may be awarded in the court’s discretion, accounting for the degree of success.
• Contemporaneous reasons, notice in the pleadings, and accurately separated jury questions matter.