BILL ANALYSIS �
SB 655
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Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 655 (Wright) - As Amended: August 6, 2013
SENATE VOTE : 21-13
SUBJECT : employment DISCRIMINATIoN: REMEDIES
KEY ISSUE : SHOULD A RECENT CALIFORNIA SUPREME COURT CASE BE
CODIFIED AND REVISED TO PROVIDE SPECIFIED RELIEF TO EMPLOYEES
WHO SUFFER "MIXED-MOTIVE" DISCRIMINATION AND PROVIDE EMPLOYERS
WITH A DEFENSE AGAINST FULL LIABILITY FOR OTHERWISE AVAILABLE
REMEDIES?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
The Fair Employment and Housing Act (FEHA) prohibits
discrimination in employment on the basis of specified
characteristics and activities, such as race, sex and
retaliation for exercising protected rights. This bill
addresses the remedies available to a person when an employer
has unlawfully acted on the basis of those prohibited factors
but the employer also has a legitimate reason for the action.
In these "mixed-motive" cases, the California Supreme Court
recently ruled that the employee has prevailed because the
employer's action violates the policy of the FEHA, but that full
damages cannot be recovered because the employer has a partial
defense. This bill would largely codify the principles
reflected in the recent court ruling by allowing the partial
defense with some revision of the recoverable remedies. It
would eliminate the recovery of declaratory relief allowed by
Harris, but permit recovery of noneconomic damages and a
statutory penalty. Supporters argue that it will provide
greater guidance and certainty for employers and employees in
this new area of the law. Prior to recent amendments business
advocates opposed the size of the statutory penalty and also
argued that the bill should use the term "substantial motivating
factor." As amended, the bill reduces the statutory penalty
from $25,000 to $15,000 and adds the requested term "substantial
motivating factor."
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SUMMARY : Codifies and revises a recent California Supreme Court
ruling that an employee shall prevail under the FEHA for the
purpose of specified remedies if the employee proves that a
protected characteristic was a substantial motivating factor in
the challenged employment action. Specifically, this bill :
1)Provides that for purposes of a claim of an unlawful
employment practice under FEHA, the employee shall prevail if
he or she proves that a protected characteristic was a
substantial motivating factor in the action against the
employee.
2)Defines "substantial motivating factor" as a factor that
actually contributed to the employment action or decision.
The factor must be more than a remote or trivial factor, but
need not be the only or main cause of the employment action or
decision.
3)Provides that if an employer proves as an affirmative defense
that it would have taken the same adverse employment action
against an employee absent consideration of the protected
characteristic, at the same time, for lawful reasons, the
court may grant recovery of noneconomic damages caused by the
adverse action and attorney's fees and costs. In addition to
any other available remedy a statutory penalty of $15,000
shall be awarded to the employee.
4)Provides that an employee shall not be entitled to
reinstatement, back pay, or declaratory relief.
EXISTING LAW :
1)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.)
2)Establishes a three-stage burden-shifting test to determine
whether an employment action constitutes prohibited
discrimination. Initially, the burden lies with the plaintiff
to establish a prima facie case that the employer took an
adverse employment action based on a prohibited
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characteristic. The burden then shifts to the employer to
articulate some rational, nondiscriminatory reason for the
action. If the employer satisfies this requirement, the
plaintiff must be afforded the opportunity to show that the
employer's proffered reason for the employment action was in
fact pretextual. (McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792, 803-804.)
COMMENTS : This bill addresses the remedies available to a
person when an employer has unlawfully discriminated on the
basis of prohibited factors and activities, such as race or sex,
but the employer also has a legitimate reason for the action.
In these "mixed-motive" cases, the California Supreme Court
recently ruled in Harris v. City of Santa Monica that the
employee has prevailed because the employer's action violates
the policy of the FEHA, but allowed the employer a partial
defense against liability for full damages. Federal law is
similar. This bill would largely codify the principles
reflected in the Harris case by allowing the partial defense
with some revision of the recoverable remedies. Specifically,
it would eliminate the recovery of declaratory relief allowed by
Harris, but permit recovery of noneconomic damages and a
statutory penalty.
The author explains the bill as follows:
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 FEHA's prescriptive function
to provide effective remedies for redressing, preventing,
and deterring unlawful discrimination. By establishing a
civil penalty of $15,000 for discrimination that is proven
to be a "substantial factor" in a negative employment
action and by providing non-economic relief for the
aggrieved worker, this bill strikes the right balance in
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preventing and deterring unlawful employment practices and
redressing their adverse effects.
According to co-sponsor AARP California, this bill "will restore
the FEHA's intent of providing an effective remedy to redress,
prevent, and deter unlawful discrimination. By establishing a
[$15,000] 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. It
is essential to prevent workplace discrimination as a matter of
public policy. Although an employer should be required to
reinstate an employee that the employer has terminated for a
nondiscriminatory reason, this bill would provide an appropriate
deterrent from discrimination, a $15,000 statutory penalty, to
further the intent of FEHA to prevent and deter workplace
discrimination. In addition, the bill sustains existing law,
which authorizes the court to award attorney's fees and costs to
a prevailing plaintiff."
The Greater Sacramento Urban League adds, "[p]rior to Harris,
case law established that 'the sole inquiry in each case is
whether a preponderance of all the evidence demonstrates the
adverse employment action was at least in part by a
discriminatory motive.' . . . The Court in Harris adopted a
"substantial factor" standard as the causal nexus test to prove
unlawful discrimination, but did not provide any further
guidance on how a plaintiff may meet this burden. . . . SB 655
is an important step in the right direction towards addressing
workplace discrimination. It follows the court's ruling in
Harris 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."
Mixed Motive Decisionmaking . In Harris, the employee proved the
existence of a discriminatory purpose behind the challenged
employment action. However, the employer also proved the
existence of an additional nondiscriminatory purpose. Relying on
cognate federal law, the Harris court held that an employee
prevails under the FEHA when the employer acts on the basis of
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prohibited factors, but the employer has a partial defense
against the otherwise available remedies. 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. ?
[M]ere 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 the discrimination." (Harris, 56 Cal.4th at 225.)
This bill would codify the court's holding that, to prevail in a
mixed-motive employment discrimination case brought under the
FEHA, the employee must show that an unlawful discriminatory
purpose was a substantial factor in the adverse employment
action. The court discussed but did not define the term
"substantial motivating factor." This bill would provide the
missing definition, consistently with the court's discussion in
Harris and similar "substantial factor" cases.
Available Remedies. Harris held that the remedies in a
mixed-motive case were limited 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. This bill largely
adopts that holding but would eliminate the recovery of
declaratory relief allowed by Harris, and permit recovery of
noneconomic damages and a statutory penalty of $15,000. This is
a lesser amount than the $25,000 civil penalty otherwise allowed
under the FEHA.
Recent Amendments Respond To Opposition Arguments. Prior to
recent amendments, a coalition of business advocates argued for
inclusion of the term "substantial motivating factor." This
term has been added by the recent amendments. The opposition
also complained about the amount of the statutory penalty. The
amendments reduce the penalty from $25,000 to $15,000.
REGISTERED SUPPORT / OPPOSITION :
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Support
AARP California (co-sponsor)
California Employment Lawyers Association (co-sponsor)
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' 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 (Prior to recent amendments)
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
Greater Fresno Area Chamber of Commerce
Flasher Barricade Association
Marin Builders Association
Western Electrical Contractors Association
Analysis Prepared by : Kevin G. Baker and Alexander Nowinski /
JUD. / (916) 319-2334
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