Update: This is a great post. I spent a lot of time on it and I think that, if you give it a chance, you’ll find it moving and enlightening. However, the bill I complain about was vetoed by Governor Brown. You can read about that in a much shorter (and frankly, less moving and enlightening) post here.
Discrimination is all about motive. If you fire someone because they belong to a protected category, it’s discrimination. If you fire someone who belongs to a protected category for an unrelated reason, that’s not discrimination. Now a bill (SB 655) has passed both houses of the legislature that will make it easier to prove discrimination.
The bill is a reaction to the California Supreme Court’s decision earlier this year in Harris v. City of Santa Monica. That case discussed what a discrimination plaintiff must prove when multiple factors motivated the defendant’s conduct (i.e. a mixed-motive case). The court concluded that, as one step in the process, a plaintiff must prove that discrimination was a “substantial motivating factor.”
SB 655 would define “substantial motivating factor” as follows:
For purposes of this section, “substantial motivating factor” means a factor that contributed to the employment action or decision. It shall be more than a remote or trivial factor, but need not be the only or main cause of the employment action or decision. Evidence that the person claiming to be aggrieved had a protected characteristic at the time of the employment action or decision is not, by itself, sufficient proof that the protected characteristic was a substantial motivating factor.
That definition is neither clear nor precise. The first and third sentences add nothing. The first is a tautology. It says that a “substantial motivating factor” must be a factor that contributed to the decision. It’s circular. The third sentence says that there needs to be some proof of motive — that it’s not enough to show that you belong to a protected category. There was never any doubt that discrimination plaintiffs have to prove they belong to a protected class. But we’re supposed to be talking about motive.
So we’re left with the second sentence, which says that a substantial motivating factor is somewhere between a “remote or trivial factor” and “the only or main cause of the employment action or decision.” There’s a lot of room between those two descriptions. In fact, they’re almost opposite ends of the spectrum. As a result, the only part of the statute that purportedly attempts to define this term is incredibly imprecise – not the quality you look for in a definition.
Why would the legislature seek to enact a vague definition for a critical issue in determining what is or isn’t discrimination? Because that’s what the group of plaintiffs employment lawyers – the California Employment Lawyers Association – who co-sponsored the bill want. I have friends and people I respect a great deal who belong to CELA. But there’s no question that they’ve got a receptive audience in both houses of the state legislature and that they’re using that to their advantage (for example when they recently expanded the definition of sexual harassment). In fact, while they were at it, they also included language in SB 655 increasing the types of damages a plaintiff can recover in mixed motive cases when the employer proves it would have made the same decision regardless of the plaintiff’s protected status.
If Governor Brown signs the bill, plaintiffs will have an easier time getting their cases before a jury, which they know will be more inclined to see things from their perspective than that of an employer trying to run its business. In response to a defense motion for summary judgment, they’ll argue that all they need to show to survive is that the plaintiff’s protected status was “more than a remote or trivial factor.” That’s probably the easiest standard for “proving” discrimination that there’s ever been.
What can employers do to protect themselves if SB 655 becomes law? In my opinion, employment arbitration agreements are becoming increasingly attractive. Even if the conflicts between California and federal law haven’t been entirely resolved, a carefully crafted arbitration agreement still provides your best protection against letting a disgruntled former employee play jury-lottery with your company’s money and reputation.