California workers will have a harder time winning employment discrimination cases in the wake of the state Supreme Court’s recent decision in Harris vs. City of Santa Monica. How much harder depends on how lower courts interpret the decision.
Lawyers for employers hailed the Feb. 7 decision as a big victory and some are already using it in pending court cases and settlement negotiations.
However, a jury in Los Angeles last week awarded a plaintiff $21.8 million in a mental-disability suit. Deliberation in that case was postponed for one day so the Harris decision could be incorporated into the jury instructions, says Bruce Kokozian, a lawyer for the plaintiff, April Rodriguez.
In the Harris case, the city of Santa Monica fired bus driver Wynona Harris in May 2005, six days after she told her boss she was pregnant. Harris said she was fired because she was pregnant. The city said she was fired for having two noninjury accidents and being late for work twice during her first five months.
A jury found that her pregnancy was a “motivating factor” in her firing and awarded her $177,905 in damages.
An appeals court overturned the verdict. Although it found substantial evidence of pregnancy discrimination, it said the trial-court judge should have instructed the jury that if there were both legitimate and discriminatory reasons for her firing, the city could have escaped liability if it could prove – with a preponderance of evidence – that it would have fired her for the legitimate reasons alone.
The Supreme Court agreed that the trial judge erred in jury instructions and overturned the damages. However, it also said that if a plaintiff can prove that discrimination was a substantial motivating factor, the plaintiff could get attorneys fees and costs, even if no damages are awarded.
Although the decision will make it harder for plaintiffs to win damages, it’s not a slam dunk for employers, says Noah Lebowitz, an attorney with Duckworth Peters Lebowitz Olivier who represents employees.
He explains: Before the Harris decision, plaintiffs could win damages and attorney fees if they could prove discrimination was a motivating factor in an adverse employment decision. If the employer offered another reason for the action, the plaintiff had to prove this was a pretext or sham.
Since the Harris decision, a plaintiff must prove discrimination was not just a factor but a substantial factor to win damages and/or attorneys fees.
But if the employer can prove it would have made the same decision for legitimate reasons, even if there was substantial evidence of discrimination, it won’t have to pay damages, although it could have to pay attorney fees. To avoid damages, however, the burden of proof is on the employer.
“There is no question that (the Harris decision) appears to create a higher standard for plaintiffs to meet to establish a claim for back pay,” says David Lowe, an attorney with Rudy, Exelrod, Zieff & Lowe who represents employees. Whether it will make lawyers more reluctant to take on cases depends on how it plays out in the lower courts.
One question is how the word “substantial” will be interpreted.
“At least in the short term, (the decision) might make cases more difficult to settle because the management lawyers are going to do what they are already doing … jumping up and down, saying this is a huge standard, you’ll never get any money, so take a lowball offer and go away,” Lebowitz says.
Attorney Steven Hirschfeld, who represents employers, says, “What this decision is really doing is weeding out the unusually weak, the frivolous cases, where there is no evidence of discrimination or it’s pretty darn clear the employer had a pretty good reason for the employment decision.”
In the Rodriguez case, the jury determined that her former employer – Valley Vista Services and its parent company Zerep Management – failed to make reasonable accommodations for her mental illness, including panic attacks, Kokozian says.
Rodriguez worked in customer service for the waste-disposal company. The company said she was fired for failing to call her supervisors and explain an absence that lasted longer than three days. Her lawyers said she was on leave when she was fired.
After being instructed about the Harris decision, the Los Angeles Superior Court jury decided that “her disability was a substantial motivating factor” for her termination, Kokozian says. Its $21.8 million award included almost $16.6 million in punitive damages.
Zerep’s attorney Steven Joffe called the verdict “shocking and outrageous. We will seek a new trial.”
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