No Damages Under FEHA When Plaintiff Proves Unlawful Discrimination And Employer Proves It Would Have Made The Same Decision Absent Discrimination; But Plaintiff May Be Awarded Attorney Fees.

Plaintiff bus driver brought an action against a City, alleging she was fired because she was pregnant, in violation of the Fair Employment and Housing Act [FEHA, Government Code section 12940]. The City claimed she was fired for poor job performance. At trial, the City asked the court to instruct the jury that if it found a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her. The trial court refused the instruction, and the jury returned a substantial verdict for the employee.  The California Supreme Court reversed the award of damages, stating:  “ 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 fees and costs.”  The case was remanded to the trial court for further proceedings.  Harris v. City of Santa Monica (Cal. Sup. Ct.;  February 7, 2013) (Case No. S181004).