BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 655 (Wright)
As Amended April 15, 2013
Hearing Date: April 23, 2013
Fiscal: No
Urgency: No
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SUBJECT
Fair Employment and Housing Act: Unlawful Practices
DESCRIPTION
This bill would provide that for purposes of a Fair Employment
and Housing Act claim, the employee shall prevail if the
employee has proven that a protected characteristic was a
substantial factor in the adverse employment action. This bill
would define "substantial factor" to mean that a reasonable
person would conclude that the factor contributed to the harm,
and it must be more than a remote or trivial factor but need not
be the only cause of the harm to the employee.
This bill would also provide that if an employer proves as an
affirmative defense that it would have taken the same adverse
employment action against an employee, at the same time, for
lawful reasons, absent consideration of the protected
characteristic, the court shall award, in addition to any other
available remedy, a $25,000 statutory penalty payable to the
employee. However, the employee would not be entitled to
reinstatement or backpay.
BACKGROUND
Existing law, the Fair Employment and Housing Act (FEHA),
prohibits discrimination in housing and employment because of
race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, or sexual orientation
(protected characteristics). In FEHA cases, parties are subject
(more)
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to a three-stage burden-shifting test, commonly referred to as
the McDonnell Douglas test, which begins with the burden on the
plaintiff to prove it is more likely than not that the employer
took an adverse employment action based on a prohibited
characteristic. (See McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792; Guz v. Bechtel National Inc. (2000) 24 Cal.4th
317, 354-356.)
The McDonnell Douglas test presupposes that there is only one
reason for an employer to have taken an adverse employment
action against an employee. However, in cases where a court
finds that an employer had mixed motives (both discriminatory
and nondiscriminatory reasons) for the adverse employment
action, courts have struggled to determine what level of
causation is required for a court to find that the
discriminatory motives were the main reason for the adverse
employment action.
Recently, the California Supreme Court faced this challenge in
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, and held
that, in order for a plaintiff to prevail on a mixed-motive FEHA
case, the plaintiff must prove that the discriminatory motive
was the substantial factor in the defendant's adverse employment
decision. This bill would codify the court's holding in the
Harris case, as well as provide a definition of "substantial
factor."
This bill would also provide that, if an employer proves that it
would have taken the same adverse employment action against an
employee for stated nondiscriminatory reasons, the court shall
grant, in addition to any other available remedy (other than
reinstatement or backpay), a $25,000 statutory penalty to be
awarded directly to the employee. This bill would also provide
that a court may also grant as relief any other relief that, in
the judgment of the court, will effectuate the purpose of FEHA.
CHANGES TO EXISTING LAW
Existing law, the Fair Employment and Housing Act (FEHA)
prohibits discrimination in housing and employment on the basis
of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, or sexual orientation. (Gov.
Code Sec. 12920 et seq.)
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This bill would provide that for purposes of a claim of an
unlawful practice under FEHA, the employee shall prevail if he
or she proves that a protected characteristic was a substantial
factor in the adverse employment action.
This bill would define "substantial factor" to mean that a
reasonable person would conclude that the factor contributed to
the harm. It must be more than a remote or trivial factor but
need not be the only cause of the harm to the employee.
This bill would provide that if an employer proves as an
affirmative defense that it would have taken the same adverse
employment action against an employee, at the same time, for
lawful reasons, absent consideration of the protected
characteristic, the court shall grant, in addition to any other
available remedy, a $25,000 statutory penalty to be awarded
directly to the employee. This bill would also provide that a
court may also grant as relief any other relief that, in the
judgment of the court, will effectuate the purpose of FEHA.
This bill would provide that an employee shall not be entitled
to reinstatement or backpay.
COMMENT
1. Stated need for the bill
The author writes:
SB 655 follows the court's ruling in Harris [v. City of Santa
Monica (2013) 56 Cal.4th 203] by recognizing and addressing
mixed motive discriminatory practices in the workplace and
provides clarity and guidance for the "substantial factor"
standard that was adopted, but left undefined by the court.
This bill would codify the definition of "substantial factor"
consistent with the California Supreme Court's previous
decisions interpreting this phrase (See Bockrath v. Aldrich
Chemical Co., Inc. (1999) 21 Cal.4th 71, Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953).
SB 655 will also restore the [Fair Employment and Housing Act]
FEHA's prescriptive function to provide effective remedies for
redressing, preventing, and deterring unlawful discrimination.
By establishing a civil penalty of $25,000 for discrimination
that is proven to be a "substantial factor" in an adverse
employment action and by providing non-economic relief for the
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aggrieved worker, this bill strikes the right balance in
preventing and deterring unlawful employment practices and
redressing their adverse effects.
2. Substantial factor
This bill would provide that for purposes of a FEHA claim, the
employee shall prevail if the employee has proven that a
protected characteristic was a substantial factor in the adverse
employment action. In doing so, this bill would codify the
California Supreme Court's ruling in Harris v. City of Santa
Monica (2013) 56 Cal.4th 203.
In Harris, the court considered an employer's defense to
liability when the employer has proven a nondiscriminatory
motive considered at the same time an adverse employment action
was taken because of, as proven by the plaintiff, a
discriminatory motive. The court held that "[i]n light of the
FEHA's purposes, especially its goal of preventing and deterring
unlawful discrimination, we conclude that a same-decision
showing by an employer is not a complete defense to liability
when the plaintiff has proven that discrimination on the basis
of a protected characteristic was a substantial factor
motivating the adverse employment action. As we explain below,
mere discriminatory thoughts or stray remarks are not sufficient
to establish liability under the FEHA. But it would defeat the
preventive and deterrent purposes of the FEHA to hold that a
same-decision showing entirely absolves an employer of liability
when its employment decision was substantially motivated by
discrimination. (Id. at p. 225.) This bill would codify the
courts holding that, to prevail in a mixed-motive employment
discrimination case brought under FEHA, the plaintiff employee
must show that an unlawful discriminatory purpose was a
substantial factor in the adverse employment action.
Further, the author argues that this bill is necessary to
provide a definition for "substantial factor" that was otherwise
left undefined in Harris but is consistent with previous
California Supreme Court decisions. This bill would define
"substantial factor" to mean that a reasonable person would
conclude that the factor contributed to the harm, and it must be
more than a remote or trivial factor but need not be the only
cause of the harm to the employee. Proponents assert that this
definition is based on the California Supreme Court's holding in
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978,
which analyzed the causation burden of proof regarding exposure
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to products containing asbestos. In Rutherford, the court
stated that:
Generally, the burden falls on the plaintiff to establish
causation. . . . California has definitively adopted the
substantial factor test of the Restatement Second of Torts for
cause-in-fact determinations. Under that standard, a cause in
fact is something that is a substantial factor in bringing
about the injury. The substantial factor standard generally
produces the same results as does the "but for" rule of
causation which states that a defendant's conduct is a cause
of the injury if the injury would not have occurred "but for"
that conduct. The substantial factor standard, however, has
been embraced as a clearer rule of causation - one which
subsumes the "but for" test while reaching beyond it to
satisfactorily address other situations, such as those
involving independent or concurrent causes in fact.
The term "substantial factor" has not been judicially defined
with specificity, and indeed it has been observed that it is
"neither possible nor desirable to reduce it to any lower
terms." This court has suggested that a force which plays only
an "infinitesimal" or "theoretical" part in bringing about
injury, damage, or loss is not a substantial factor. Undue
emphasis should not be placed on the term "substantial." For
example, the substantial factor standard, formulated to aid
plaintiffs as a broader rule of causality than the "but for"
test, has been invoked by defendants whose conduct is clearly
a "but for" cause of plaintiff's injury but is nevertheless
urged as an insubstantial contribution to the injury. Misused
in this way, the substantial factor test "undermines the
principles of comparative negligence, under which a party is
responsible for his or her share of negligence and the harm
caused thereby." (Id. at pp. 968-969; citations omitted.)
The California Employment Lawyers Association (CELA), a
co-sponsor, notes that the Rutherford holding was confirmed by
Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 79
(another product liability action) and argues that the
Rutherford substantial factor standard is appropriate, "[g]iven
the Supreme Court's previous (and consistent) definition of
'substantial factor'" and "SB 655 would codify FEHA's causal
nexus standard consistent with the Court's interpretation of
this phrase."
3. Mixed-motive case remedies
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This bill would provide that if a plaintiff (employee) proves
that a discriminatory purpose was a substantial factor in an
employer's adverse employment action, but the employer would
have made the same decision based upon a nondiscriminatory
purpose that existed at the same time, the employer's liability
to the plaintiff is limited to, in addition to any other
available remedy, a $25,000 statutory penalty payable to the
employee. However, the employee would not be entitled to
reinstatement or backpay.
In the Harris case, the employee proved the existence of a
discriminatory purpose behind the employer's adverse employment
action. However, the employer proved the existence of an
additional nondiscriminatory purpose behind the adverse
employment action. In the absence of guidance under FEHA,
courts routinely rely on the statutes and case law of Title VII
of the Civil Rights Act of 1964 (the federal law prohibiting
employment discrimination) when interpreting FEHA. (See Lyle v.
Warner Brothers Television Productions (2006) 38 Cal.4th 264,
278.) Relying on the remedies found under Title VII, the Harris
court held that the employee was only entitled to declaratory
relief, injunctive relief, and attorney's fees and costs, but
the employee was not entitled to damages or an order requiring
any admission, reinstatement, hiring, promotion, or payment.
Consumer Attorneys of California (CAOC) assert that, after the
Harris decision, "[n]ow, regardless of whether discrimination
was a substantial factor, as long as employers can point to any
other reason for the decision, a court may not award damages,
back pay, or reinstatement. This precedent discourages
terminated employees from bringing lawsuits to protect their
civil rights. The new heightened standard allows employers to
justify their discrimination by providing another basis for
termination. . . . This standard undermines [FEHA's] purpose to
protect and safeguard the right and opportunity of all persons
to seek, obtain and hold employment without discrimination."
Co-sponsor AARP California argues that this bill "will restore
the FEHA's intent of providing an effective remedy to redress,
prevent, and deter unlawful discrimination. By establishing a
$25,000 civil penalty for discrimination that is proven to be a
'substantial factor' in an adverse employment action as well as
non-economic relief for the aggrieved worker, this bill strikes
the right balance in preventing and deterring unlawful
employment practices and redressing their adverse effects.
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As a matter of public policy, it is important to prevent
workplace discrimination. Although an employer should not be
required to reinstate an employee that the employer has
terminated for some nondiscriminatory reason, this bill would
provide an appropriate deterrent from discrimination, a $25,000
statutory penalty, to further the intent of FEHA to prevent and
deter workplace discrimination. In addition, the bill maintains
existing law, which authorizes the court to award attorney's
fees and costs to a prevailing plaintiff.
4. Opposition concerns
An opposition coalition asserts that the Harris court held that
"for there to be a valid discrimination claim, the employee must
prove the discriminatory intent was a substantial motiving
factors for the employer's decision. SB 655 undermines this
unanimous decision by re-defining the term 'substantial factor'
to mean discriminatory intent that is more than just 'trivial or
remote,' but eliminates the need for the discriminatory intent
to be the 'motivating' factor. While this definition tracks
jury instructions used in negligence cases where juries evaluate
a person's conduct to determine if it was the 'substantial
factor' of the injury, it fails to recognize case law defining
that term."
Opponents point to the court's discussion in Mayes v. Bryan
(2006) 139 Cal.App.4th 1075, regarding the use of a civil jury
instruction defining "substantial factor." Opponents note that
the Mayes court "agreed that this term means the act is 'a
factor that a reasonable person would consider to have
contributed to the harm. It must be more than a remote or
trivial factor. It does not have to be the only cause of the
harm. Conduct is not a substantial factor in causing the harm
if the same harm would have occurred without that conduct ."
(Emphasis in original.) Opponents further assert that this bill
will expose employers "to liability and statutory damages of at
least $25,000, even when discriminatory intent was not the
substantial factor that led to the employer's decision and the
employment decision would have still occurred regardless of the
discriminatory intent or bias."
Support : California Professional Firefighters; Church State
Council; Congress of Racial Equality of California; Consumer
Attorneys of California; Disability Rights Education & Defense
Fund; Equal Rights Advocates; Equality California; Lawyers'
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Committee for Civil Rights of the San Francisco Bay Area; Legal
Aid Society - Employment Law Center; Mexican American Legal
Defense and Education Fund; National Center for Lesbian Rights;
Transgender Law Center; Women's Employment Rights Clinic of
Golden Gate University School of Law
Opposition : Acclamation Insurance Management Services; Allied
Managed Care; California Association of Joint Powers
Authorities; California Chamber of Commerce; California Chapter
of American Fence Association; California Defense Counsel;
California Employment Law Council; California Farm Bureau
Federation; California Fence Contractors' Association;
California Grocers Association; California Manufacturers and
Technology Association; California Retailers Association;
Engineering Contractors' Association; Marin Builders
Association; Flasher Barricade Association; Western Electrical
Contractors Association
HISTORY
Source : AARP California; California Employment Lawyers
Association
Related Pending Legislation :
AB 556 (Salas, 2013) would add "military and veteran status" to
the list of characteristics that are prohibited bases of
discrimination under the employment provisions of the Fair
Employment and Housing Act (FEHA). This bill is currently in
the Assembly Committee on Labor and Employment.
SB 404 (Jackson, 2013) would add "familial status" to the list
of characteristics that are prohibited bases of discrimination
under the employment provisions of FEHA. This bill passed out
of this Committee on a vote of 5 to 2 and is currently on the
suspense file in the Senate Committee on Appropriations.
Prior Legislation : None Known
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