San Diego readers might have read or heard news stories involving an employee alleging wrongful termination or employment discrimination. Yet few may realize how hard it can be to prepare convincing evidence needed to win on this type of claim.
The reason is simple: An employer is often able to point to many lawful justifications that could support an adverse employment action, such as a denied promotion or even a termination. Almost no employee’s job performance is perfect, and employment agreements may also expressly define the terms of a position as at-will. In addition, the current state of the economy may tempt other employers to disguise discriminatory actions in the workplace under the pretext of recession-driven management policies.
Under California and federal laws, this type of dilemma in proving a case of unlawful employment discrimination is sometimes referred to as a mixed motive case. An employer whose actions could be explained under either a merit based rationale or a discriminatory pretext might be able to escape liability. A recent ruling by the California Supreme Court recently provided some guidance in this area, in the context of pregnancy discrimination.
In the case, a Santa Monica bus worker claimed that she was terminated under a pretext of poor performance after she informed her supervisor that she was pregnant. Although the employee’s performance rating was definitely not perfect, her score placed her only in probation, rather than at risk of imminent termination.
The state Supreme Court imposed additional steps into the analysis. First, an employee must prove that discrimination substantially factored into the employer’s decision to take the adverse action. An employer will then have an opportunity to respond, showing that the decision was merit based. If it fails that burden, the employer might be found liable and ordered to pay the employee damages, back pay, or perhaps even to give the employee his or her job back.
Source: hr.blr.com, “Discrimination: California Supreme Court clarifies mixed motive defense,” April 8, 2013