BILL ANALYSIS �
SB 655
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SENATE THIRD READING
SB 655 (Wright)
As Amended August 6, 2013
Majority vote
SENATE VOTE :21-13
JUDICIARY 7-3
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|Ayes:|Wieckowski, Alejo, Chau, | | |
| |Dickinson, Garcia, | | |
| |Muratsuchi, Stone | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Gorell, | | |
| |Maienschein | | |
| | | | |
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SUMMARY : Codifies and revises a recent California Supreme Court
ruling that an employee shall prevail under the Fair Employment and
Housing Act (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.
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4)Provides that an employee shall not be entitled to reinstatement,
back pay, or declaratory relief.
FISCAL EFFECT : None
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 (2013) 56 Cal.4th 203 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 preventing and deterring unlawful
employment practices and redressing their adverse effects.
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 prohibited factors, but the employer
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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 provides the definition, consistent with the
court's discussion in Harris and similar "substantial factor" cases.
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.
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.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0001650
SB 655
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