BILL ANALYSIS �
SB 655
Page 1
SENATE THIRD READING
SB 655 (Wright)
As Amended September 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
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 shall impose a statutory penalty of $25,000 to the
employee.
4)Provides that an employee shall not be entitled to
SB 655
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reinstatement, back pay, compensatory damages, 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.
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 up to $25,000 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. It is expected that courts
will impose a $25,000 penalty unless there are overriding
factors militating against it.
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
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Harris court held that an employee prevails under the FEHA when
the employer acts on the basis of 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." (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 include
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 with certain
revisions and clarifications regarding available damages.
The bill also clarifies that the limitation on damages for
mixed-motive cases does not affect the existing rights and
remedies provided under the FEHA when an employer does not plead
and prove a mixed motive defense.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0002602