In Pregnancy Discrimination Case Different Result Second Time Around.

Last year, we published the following:

Pregnancy Discrimination Verdict Upheld. Woman employee was fired three hours after returning from pregnancy leave. In her action alleging wrongful termination and violation of the California Fair Employment and Housing Act [FEHA, Government Code section 12940], a jury awarded her $10,000. After the verdict, the court granted her $50,858.44 for attorney fees. The employer argued on appeal the trial court erred in permitting the employee to prove her pregnancy-related leave was “a motivating reason” for her discharge rather than the “but for” cause of her discharge.  The employer also argued the trial court erred when it refused to permit it to avoid liability by proving it would have made the same decision even in the absence of a discriminatory or retaliatory motive. It also challenged the attorney fee award because the verdict form failed to specify whether the employee prevailed on the statutory or common law cause of action. The appellate court found no error in the jury instructions, and found the employer invited any error in the verdict form when it prepared it for the court. (Alamo v. Practice Management Information Corporation  (Cal. App. Second Dist., Div. 7; October 18, 2012) (Depublished) 210 Cal.App.4th 95, [148 Cal.Rptr.3d 151].)

The California Supreme Court granted review, decided Harris v. City of Santa Monica (2013) 56 Cal.4th 203, [294 P.3d 49; 152 Cal.Rptr.3d 392], and then directed the appellate court to vacate its decision in this case and reconsider it in light of Harris.  This time around the appellate court reversed the judgment in favor of the plaintiff and remanded the matter back to the trial court, stating: “In accordance with Harris, we now hold that the trial court prejudicially erred in instructing the jury with the former versions of CACI 2430, 2500, and 2507 because the proper standard of causation in a FEHA pregnancy discrimination or retaliation claim is not ‘a motivating reason,’ as used in the CACI instructions, but rather ‘a substantial motivating reason,’ as set forth in Harris. We further hold that [defendant] was not entitled to an instruction on the mixed-motive or same decision defense because it failed to plead that defense or any other affirmative defense alleging that it had a legitimate, non-discriminatory or non-retaliatory reason for its discharge decision in the answer.” .”  (Alamo v. Practice Management Information Corp. (Cal. App. Second Dist., Div. 7; September 5, 2013) 219 Cal.App.4th 466.)