The “I Woulda Fired Him Anyway!” Defense

If an employer fires an employee when unlawful discrimination is a substantial factor motivating the termination, if the employer can show that it would have fired the employee absent the discrimination, the employee gets no damages, backpay or even reinstatement.

So says the California Supreme Court.

This means that an employer who wants to fire an employee because of his or her race or disability or pregnancy or age can get away with firing that employee if the employer can come up with a good excuse – an “I woulda fired him anyway!” kind of excuse.

The old saying that “bad facts make bad law” is on vivid display in this decision because plaintiff, a bus driver, had a couple of accidents and showed up late to work while she was a probationary employee. So she was on the chopping block, but then she told her employer she was pregnant. She was fired anyway, because of her deficient performance.

(Plaintiff attorney’s advice to employees on probation: show up to work on time and do not cause preventable accidents if you want to keep your job.)

So after plaintiff was fired, she sued alleging pregnancy discrimination under FEHA. Employer said she was fired for cause as a probationary employee and the employer asked the trial court to instruct the jury on the mixed-motive defense. The trial court refused, and the jury found for plaintiff.

Employer appealed and the case wound up before the California Supreme Court who said the mixed-motive instruction should have been given to the jury.

The decision was probably correct in this one particular case, because the employee was a probationary employee and she clearly had problems fulfilling her duties as a bus driver. Moreover, it did not appear from the facts that there was any actual pregnancy discrimination going on.

But because of this case, good, hard-working plaintiffs who are the victims of discrimination will now have a more difficult burden to prevail in court because employers can get pretty creative when it comes to the “I woulda fired him anyway!” defense.

The court did throw a bone to those who can’t meet that substantial burden – plaintiff may be eligible for an award of reasonable attorney’s fees and costs.

Harris v. City of Santa Monica, ___ Cal.3d _____ (2013).

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