1

Filed 2/7/13 (reposted same date to correct ―D.‖ to ―C.‖ for outline structure on p. 35)

IN THE SUPREME COURT OF CALIFORNIA

WYNONA HARRIS, )

)

Plaintiff and Respondent, )

) S181004

v. )

) Ct.App. 2/8 B199571

CITY OF SANTA MONICA, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. BC341569

___________________________________)

A bus driver alleged that she was fired by the City of Santa Monica (the City) 

because of her pregnancy in violation of the prohibition on sex discrimination in the Fair 

Employment and Housing Act (FEHA). The City claimed that she had been fired for 

poor job performance. At trial, the City asked the court to instruct the jury that if it found 

a mix of discriminatory and legitimate motives, the City could avoid liability by proving 

that a legitimate motive alone would have led it to make the same decision to fire her. 

The trial court refused the instruction, and the jury returned a substantial verdict for the 

employee. The Court of Appeal reversed, holding that the requested instruction was 

legally correct and that refusal to give it was prejudicial error.

We conclude that the Court of Appeal was correct in part. We hold that under the 

FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating 

a termination of employment, and when the employer proves it would have made the 

same decision absent such discrimination, a court may not award damages, backpay, or 
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an order of reinstatement. But the employer does not escape liability. In light of the 

FEHA‘s express purpose of not only redressing but also preventing and deterring 

unlawful discrimination in the workplace, the plaintiff in this circumstance could still be 

awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory 

practices. In addition, the plaintiff may be eligible for reasonable attorney‘s fees and 

costs. Therefore, we affirm the Court of Appeal‘s judgment overturning the damages 

verdict in this case and remand for further proceedings in accordance with the 

instructions set forth below.

I.

Santa Monica‘s city-owned bus service, Big Blue Bus, hired Wynona Harris as a 

bus driver trainee in October 2004. Shortly into her 40-day training period, Harris had an 

accident, which the City deemed ―preventable.‖ Although no passengers were on her bus 

and no one was injured, the accident cracked the glass on the bus‘s back door. When the 

City hired Harris, it gave her its ―Guidelines for Job Performance Evaluation,‖ which 

said: ―Preventable accidents . . . [are] an indication of unsafe driving. . . . [T]hose who 

drive in an unsafe manner will not pass probation.‖

In November 2004, Harris successfully completed her training period, and the City 

promoted her to the position of probationary part-time bus driver. As a probationary 

driver, Harris was an at-will employee. At some point during her first three-month 

probationary evaluation period (the record is not clear when), Harris had a second 

preventable accident in which she sideswiped a parked car and tore off its side mirror. 

According to Harris, she hit the parked car after swerving to avoid a car that had cut her 

off in traffic.

On February 18, 2005, Harris reported late to work and received her first ―missout.‖ The job performance guidelines defined a ―miss-out‖ as a driver‘s failure to give 

her supervisor at least one hour‘s warning that she will not be reporting for her assigned 
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shift. The guidelines noted that most drivers get one or two late reports or miss-outs a 

year, but more than that suggested a driver had a ―reliability problem.‖ The guidelines 

further provided that a miss-out would result in 25 demerit points and that 

―[p]robationary employees are allowed half the points as a permanent full time operator, 

which is 100 points.‖

On March 1, 2005, Harris‘s supervisor gave her a written performance evaluation 

covering her first three months as a probationary driver from mid-November 2004 to 

February 14, 2005. As to Harris‘s ―overall performance rating,‖ her supervisor indicated 

―further development needed.‖ Harris testified at trial that her supervisor told her she 

was doing a good job and would have received a ―demonstrates quality performance‖ 

rating but for her November accident.

On April 27, 2005, Harris incurred her second miss-out. She had accompanied her 

daughter to a juvenile court hearing and failed to timely notify her dispatcher that she 

would be late for a rescheduled 5:00 p.m. shift. Harris testified that the stress from her 

daughter‘s hearing caused her to forget to notify the dispatcher. Transit services manager 

Bob Ayer investigated the circumstances of Harris‘s miss-out, and on May 4 or 5, 2005, 

Ayer recommended to his supervisor, the bus company‘s assistant director, that the missout should remain in Harris‘s file. Ayer testified that the assistant director asked him to 

examine Harris‘s complete personnel file. He did so and told the assistant director that 

the file showed Harris was not meeting the city‘s standards for continued employment 

because she had two miss-outs and two preventable accidents, and had been evaluated as 

needing ―further development.‖

On May 12, 2005, Harris had a chance encounter with her supervisor, George 

Reynoso, as she prepared to begin her shift. Seeing Harris‘s uniform shirt hanging loose, 

Reynoso told her to tuck it in. Harris confided to Reynoso that she was pregnant. Harris 

testified that Reynoso reacted with seeming displeasure at her news, exclaiming: ―Wow. 
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Well, what are you going to do? How far along are you?‖ He then asked her to get a 

doctor‘s note clearing her to continue to work. Four days later, on May 16, Harris gave 

Reynoso a doctor‘s note permitting her to work with some limited restrictions. (Neither 

party argues the restrictions are relevant to Harris‘s case.) The morning Harris gave him 

the note, Reynoso attended a supervisors‘ meeting and received a list of probationary 

drivers who were not meeting standards for continued employment. Harris was on the 

list. Her last day on the job was May 18, 2005.

In October 2005, Harris sued the City, alleging that the City fired her because she 

was pregnant, a form of sex discrimination. Answering Harris‘s complaint, the City 

denied her allegations and asserted as an affirmative defense that it had legitimate, 

nondiscriminatory reasons to fire her as an at-will, probationary employee.

The case was tried to a jury. The City asked the court to instruct the jury with 

BAJI No. 12.26, which pertained to its mixed-motives defense. The instruction states: 

―If you find that the employer‘s action, which is the subject of plaintiff‘s claim, was 

actually motivated by both discriminatory and non-discriminatory reasons, the employer 

is not liable if it can establish by a preponderance of the evidence that its legitimate 

reason, standing alone, would have induced it to make the same decision. [¶] An 

employer may not, however, prevail in a mixed-motives case by offering a legitimate and 

sufficient reason for its decision if that reason did not motivate it at the time of the 

decision. Neither may an employer meet its burden by merely showing that at the time of 

the decision it was motivated only in part by a legitimate reason. The essential premise 

of this defense is that a legitimate reason was present, and standing alone, would have 

induced the employer to make the same decision.‖

The court refused to give the instruction. Instead, the jury was instructed 

according to California Civil Jury Instruction (CACI) No. 2500 that Harris had to prove 

that her pregnancy was a ―motivating factor/reason for the discharge.‖ ―Motivating 
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factor‖ was further defined according to BAJI No. 12.01.1 as ―something that moves the 

will and induces action even though other matters may have contributed to the taking of 

the action.‖ By special verdict, the jury found by a vote of nine-to-three that Harris‘s

pregnancy was a motivating reason for the City‘s decision to discharge her and awarded 

her $177,905 in damages, of which $150,000 were for ―non-economic loss, including 

mental suffering.‖ 

The City moved on multiple grounds for judgment notwithstanding the verdict and 

a new trial. The City argued, among other things, that the trial court‘s refusal to give the 

jury a mixed-motive instruction deprived the City of a legitimate defense. The court 

rejected this argument. Harris thereafter sought attorney‘s fees, which the court awarded 

in the amount of $401,187. (See Gov. Code, § 12965, subd. (b) [―In . . . actions brought 

under this section, the court, in its discretion, may award to the prevailing party . . .

reasonable attorney‘s fees and costs . . . .‖].)

Relying on prior Court of Appeal cases as well as federal law interpreting title VII 

of the Civil Rights Act of 1964 (42 U.S.C § 2000e et seq. (hereafter Title VII)), the Court 

of Appeal concluded that the requested jury instruction based on BAJI No. 12.26 was an 

accurate statement of California law and that the refusal to give the instruction was 

prejudicial error. At the same time, the Court of Appeal determined that there was 

substantial evidence supporting the jury verdict that Harris had been fired because of 

pregnancy discrimination. The Court of Appeal therefore remanded for a new trial. We 

granted Harris‘s petition for review to decide whether BAJI No. 12.26‘s mixed-motive

instruction is correct.

II.

California‘s FEHA provides in pertinent part: ―It is an unlawful employment 

practice, unless based upon a bona fide occupational qualification, or, except where based 

upon applicable security regulations established by the United States or the State of 
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California: [¶] (a) For an employer, because of the race, religious creed, color, national 

origin, ancestry, physical disability, mental disability, medical condition, . . . marital 

status, sex, . . . age, or sexual orientation of any person, to refuse to hire or employ the 

person or to refuse to select the person for a training program leading to employment, or 

to bar or to discharge the person from employment or from a training program leading to 

employment, or to discriminate against the person in compensation or in terms, 

conditions, or privileges of employment.‖ (Gov. Code, § 12940 (hereafter section 

12940(a)); all further statutory references are to this code unless otherwise indicated.) 

Elsewhere the statute makes clear that ―  ̳[s]ex‘ includes, but is not limited to, . . . [¶] 

[p]regnancy . . . [¶] . . . [c]hildbirth, or medical conditions related to [pregnancy or]

childbirth.‖ (§ 12926, subd. (q)(1).)

In FEHA employment discrimination cases that do not involve mixed motives, we 

have adopted the three-stage burden-shifting test established by McDonnell Douglas 

Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). As explained in Guz v. 

Bechtel National Inc. (2000) 24 Cal.4th 317 (Guz), a plaintiff has the initial burden to 

make a prima facie case of discrimination by showing that it is more likely than not that 

the employer has taken an adverse employment action based on a prohibited criterion. A 

prima facie case establishes a presumption of discrimination. The employer may rebut 

the presumption by producing evidence that its action was taken for a legitimate, 

nondiscriminatory reason. If the employer discharges this burden, the presumption of 

discrimination disappears. The plaintiff must then show that the employer‘s proffered 

nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may 

offer any other evidence of discriminatory motive. The ultimate burden of persuasion on 

the issue of discrimination remains with the plaintiff. (See id. at pp. 354–356.)

The framework above presupposes that the employer has a single reason for taking 

an adverse action against the employee and that the reason is either discriminatory or 
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legitimate. By hinging liability on whether the employer‘s proffered reason for taking the 

action is genuine or pretextual, the McDonnell Douglas inquiry aims to ferret out the 

―true‖ reason for the employer‘s action. In a mixed-motives case, however, there is no 

single ―true‖ reason for the employer‘s action. What is the trier of fact to do when it 

finds that a mix of discriminatory and legitimate reasons motivated the employer‘s 

decision? That is the question we face in this case.

Our goal, as in all cases of statutory interpretation, is to give effect to the 

Legislature‘s intent. In discerning that intent, we begin with the statutory text.

A.

As noted, section 12940(a) prohibits an employer from taking an employment 

action against a person ―because of‖ the person‘s race, sex, disability, sexual orientation, 

or other protected characteristic. The phrase ―because of‖ means there must be a causal 

link between the employer‘s consideration of a protected characteristic and the action 

taken by the employer. The existence of this causation requirement in the statute is 

undisputed. What is disputed is the kind or degree of causation required.

Linguistically, the phrase ―because of‖ is susceptible to many possible meanings. 

The City contends that the phrase ―because of‖ means that an employer‘s consideration 

of a protected characteristic must be necessary to its decision to take the employment 

action at issue. This notion of causation is commonly called ―but for‖ causation — that 

is, the employer would not have taken the action but for its consideration of a protected 

characteristic.

An example of this construction of the phrase ―because of‖ may be found in Gross 

v. FBL Financial Services, Inc. (2009) 557 U.S. 167 (Gross). Gross involved a dispute 

over the meaning of the prohibition on adverse employment actions ―because of [an] 

individual‘s age‖ in the federal Age Discrimination in Employment Act (ADEA). (29 

U.S.C. § 623(a).) The high court said that ―the ordinary meaning of the ADEA‘s 
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requirement that an employer took adverse action  ̳because of‘ age is that age was the 

 ̳reason‘ that the employer decided to act.‖ (Gross, at p. 176.) To establish a violation of 

the statute, the court held, ―a plaintiff must prove that age was the  ̳but-for‘ cause of the 

employer‘s adverse decision.‖ (Ibid.)

Our precedent has recognized, however, that ―but for‖ causation is not the only 

possible meaning of the phrase ―because of‖ in the context of an antidiscrimination 

statute. In In re M.S. (1995) 10 Cal.4th 698, two minors were charged with violating 

California hate crime statutes that prohibited any person from interfering with the 

constitutional rights of another ―  ̳because of the other person‘s race, color, religion, 

ancestry, national origin, or sexual orientation.‘ ‖ (Id. at p. 706, fn. 1, quoting former 

Pen. Code, former §§ 422.6, 422.7 (added by Stats. 1987, ch. 1277, § 4, pp. 4546-4747); 

see In re M.S., at p. 706, fn. 1 [noting that the Legislature later ―added gender and 

disability to the list of protected characteristics‖].) In challenging the true findings on the 

charged offenses, the minors argued that the statutes ―must be read to require proof the 

victim would not have been selected but for his or her protected characteristic.‖ (In re 

M.S., at p. 716.) We did not endorse that view and instead explained that ―nothing in the 

text of the statute suggests the Legislature intended to limit punishment to offenses 

committed exclusively or even mainly because of the prohibited bias. A number of 

causes may operate concurrently to produce a given result, none necessarily 

predominating over the others.‖ (Id. at p. 719; see id. at p. 716 [―[W]e do not find in the 

statutes . . . a requirement that the prohibited motivation be the predominant or exclusive 

cause of the offense.‖].) Instead, we held that ―a crime with multiple concurrent causes is 

still done  ̳because of‘ bias . . . if the prohibited bias was a substantial factor in the 

commission of the crime.‖ (Id. at p. 716.) Our opinion further noted that the ―substantial 

factor‖ requirement is not met in the case of ―a person who entertains in some degree 
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racial, religious or other bias, but whose bias is not what motivated the offense.‖ (Id. at 

p. 719, italics omitted.)

Here, Harris similarly contends that the phrase ―because of‖ in section 12940(a) 

does not mean that the employer‘s consideration of a protected characteristic must be the 

―but for‖ cause of the disputed employment action. Section 12940(a) does not say that 

the employment action must be ―solely because of,‖ ―exclusively because of,‖ or 

―predominantly because of‖ improper discrimination. The statute simply says ―because 

of.‖ In interpreting this phrase, however, Harris does not propose the ―substantial factor‖ 

test stated in In re M.S. It is enough, according to Harris, that discrimination was ―a 

motivating factor‖ in the employer‘s decision, even if other factors also played a role. As 

explained below, Harris‘s view is consistent with the long-standing interpretation of 

section 12940(a) adopted by the Fair Employment and Housing Commission (FEHC) as 

well as Congress‘s understanding of the phrase ―because of‖ when it amended Title VII‘s 

prohibition on employment discrimination in 1991. 

The discussion above indicates that there are at least three plausible meanings of 

the phrase ―because of‖ in section 12940(a) — (1) discrimination was a ―but for‖ cause 

of the employment decision, (2) discrimination was a ―substantial factor‖ in the decision,

and (3) discrimination was simply ―a motivating factor‖ — each of which is supported by 

some authority. When faced with textual ambiguity, we often consult legislative history. 

But our review of the FEHA‘s legislative history has uncovered nothing that bears on the 

kind or degree of causation required by section 12940(a).

Amici curiae California Employment Law Counsel and Employers Group observe 

that the FEHA‘s prohibition on housing discrimination includes a provision that says: ―A 

person intends to discriminate if race, color, religion, sex, . . . sexual orientation, marital 

status, national origin, ancestry, familial status, source of income, . . . [or] disability is a 

motivating factor in committing a discriminatory housing practice even though other 
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factors may have also motivated the practice.‖ (§ 12955.8, subd. (a).) Amici curiae

contend that the Legislature‘s adoption of the ―motivating factor‖ standard in the context 

of housing discrimination but not employment discrimination demonstrates its intent to 

exclude that standard from the FEHA‘s prohibition on employment discrimination.

It is well-established that ―  ̳negative implications raised by disparate provisions 

are strongest‘ when the provisions were  ̳considered simultaneously when the language 

raising the implication was inserted.‘ ‖ (Gross, supra, 557 U.S. at p. 175, quoting Lindh 

v. Murphy (1997) 521 U.S. 320, 330; see post, at p. 16 [discussing simultaneous 

amendments to Title VII and the ADEA].) In Richfield Oil Corp. v. Crawford (1952) 39 

Cal.2d 729, 735, the court drew such a negative inference where the disparate provisions 

―were reenacted together.‖ Similarly, in People v. Giordano (2007) 42 Cal.4th 644, 670, 

the court drew a negative implication in the context of two disparate statutes amended 

―simultaneously.‖

Here, by contrast, the Legislature added the ―motivating factor‖ language to the 

FEHA‘s housing provisions as part of a 1993 amendment whose sole purpose was to 

bring California housing law into conformity with federal law. (See Broadmoor v. San 

Clemente Homeowners Association (1994) 25 Cal.App.4th 1, 7–8.) There is no 

indication that the Legislature, in enacting section 12955.8, subdivision (a), considered 

the FEHA‘s employment discrimination provisions or any statutes other than California 

housing law. (See Assem. Com. on Judiciary, Rep. on Assem. Bill No. 2244 (1993–1994 

Reg. Sess.) Apr. 28, 1993; Assem. Ways & Means Com., Analysis of Assem. Bill No. 

2244 (1993–1994 Reg. Sess.) June 2, 1993; Sen. Com. on Judiciary, Rep. on Assem. Bill 

No. 2244 (1993–1994 Reg. Sess.) Aug. 24, 1993; Sen. Rules Com., Rep. on Assem. Bill 

No. 2244 (1993–1994 Reg. Sess.) Aug. 24, 1993.) Where a provision ―contained in a 

related statute was added by amendment many years after the enactment of the statute 

containing no such provision,‖ and where ―it is not apparent to us that . . . the Legislature 
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was necessarily concerned with anything beside[s]‖ the related statute, we have refused 

to ascribe an intent to the Legislature merely on the basis of negative inference. 

(Traverso v. People ex rel. Dept. of Transportation (1993) 6 Cal.4th 1152, 1166.)

We are left, then, with an ambiguity in the meaning of ―because of‖ in section 

12940(a). In the face of this ambiguity, the parties and various amici curiae direct our 

attention to judicial interpretation of the phrase ―because of‖ as it appears in Title VII. 

We have said that ―[b]ecause of the similarity between state and federal employment 

discrimination laws, California courts look to pertinent federal precedent when applying 

our own statutes.‖ (Guz, supra, 24 Cal.4th at p. 354.) Accordingly, we turn now to 

consider federal antidiscrimination law, beginning with Title VII and the United States 

Supreme Court‘s decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 288 (Price 

Waterhouse).

B.

Title VII makes it unlawful for an employer ―to fail or refuse to hire or to 

discharge any individual, or otherwise to discriminate against any individual with respect 

to his compensation, terms, conditions, or privileges of employment, because of such 

individual‘s race, color, religion, sex, or national origin.‖ (42 U.S.C. § 2000e-2(a)(1).) 

In Price Waterhouse, the high court observed that the federal courts of appeals were ―in 

disarray‖ on what kind of causation Title VII requires and who bears the burden of proof 

in a mixed-motives case. (Price Waterhouse, supra, 490 U.S. at p. 238, fn. 2.)

At the time, some federal circuits required a plaintiff to prove ―but for‖ causation 

to establish liability. (See McQuillen v. Wisconsin Education Assn. Council (7th Cir. 

1987) 830 F.2d 659, 664–665; Bellissimo v. Westinghouse Electric Corp. (3d Cir. 1985) 

764 F.2d 175, 179.) Other courts held that when a plaintiff has shown that discrimination 

was a ―substantial‖ or ―motivating‖ factor in an employment decision, the employer can 

avoid liability by proving it would have made the same decision absent the 
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discrimination. (See Berl v. Westchester County (2d Cir. 1988) 849 F.2d 712, 714–715 

(―substantial part‖); Fields v. Clark University (5th Cir. 1987) 817 F.2d 931, 936–937 

(―motivating factor‖).) Still other circuits held that when a plaintiff has shown that 

discrimination played a discernible part in an employment decision, a same-decision 

showing by the employer precludes damages and reinstatement remedies but does not 

provide a defense to liability. (See Bibbs v. Block (8th Cir. 1985) 778 F.2d 1318, 1323–

1324 (en banc); Fadhl v. City and County of San Francisco (9th Cir. 1984) 741 F.2d 

1163, 1165–1166.)

In Price Waterhouse, the high court resolved this conflict in a splintered decision 

with six justices agreeing that ―when a plaintiff in a Title VII case proves that her gender 

played a motivating part in an employment decision, the defendant may avoid a finding 

of liability only by proving by a preponderance of the evidence that it would have made 

the same decision even if it had not taken the plaintiff‘s gender into account.‖ (Price 

Waterhouse, supra, 490 U.S. at p. 258 (plur. opn. of Brennan, J.); see id. at pp. 259–260 

(conc. opn. of White, J.); id. at p. 276 (conc. opn. of O‘Connor, J.).) The principal debate 

in Price Waterhouse concerned the ―allocation of the burden of persuasion on the issue of 

causation.‖ (Id. at p. 263 (conc. opn. of O‘Connor, J.).) The high court rejected the view 

that a Title VII plaintiff has the burden of proving ―but for‖ causation. Instead, the court 

held that once the plaintiff shows that discrimination was a motivating factor, the burden 

shifts to the defendant to negate ―but for‖ causation by proving that it would have made 

the same decision at the time even without the discrimination.

In the case before us, the City does not contend that Harris had the burden of

proving ―but for‖ causation. Instead, the City argues that the trial court should have 

instructed the jury: ―If you find that the employer‘s action . . . was actually motivated by 

both discriminatory and non-discriminatory reasons, the employer is not liable if it can 

establish by a preponderance of the evidence that its legitimate reason, standing alone, 
13

would have induced it to make the same decision.‖ Thus, the City does not object to the 

burden-shifting aspect of Price Waterhouse. Its primary contention is that we should 

follow Price Waterhouse not only with respect to burden shifting, but also with respect to 

the legal effect of an employer‘s same-decision showing. Under Price Waterhouse, such 

a showing by the employer is a complete defense to liability. (Price Waterhouse, supra, 

490 U.S. at p. 242 (plur. opn. of Brennan, J.); id. at p. 261, fn. * (conc. opn. of White, J.); 

id. at pp. 261–262 (conc. opn. of O‘Connor, J.).)

This latter holding of Price Waterhouse was short-lived, however. Two years 

later, Congress passed the Civil Rights Restoration Act of 1991, which (among other 

things) codified the rule that an employer‘s same-decision showing limits the remedies 

available to a Title VII plaintiff but does not provide a complete defense to liability. 

Specifically, Congress amended Title VII to provide that ―an unlawful employment 

practice is established when the complaining party demonstrates that race, color, religion, 

sex, or national origin was a motivating factor for any employment practice, even though 

other factors also motivated the practice.‖ (42 U.S.C. § 2000e-2(m).) Congress further 

provided that when an individual ―proves a violation‖ of Title VII and the employer 

shows it ―would have taken the same action in the absence of the impermissible 

motivating factor,‖ a court can ―grant declaratory relief, injunctive relief . . . , and 

attorney‘s fees and costs‖ directly attributable to the Title VII claim but ―shall not award 

damages or issue an order requiring any admission, reinstatement, hiring, promotion, or 

payment . . . .‖ (42 U.S.C. § 2000e–5(g)(2)(B).) These provisions remain in effect today.

The Court of Appeal below said that the 1991 amendments to Title VII have no 

relevance as an aid to interpreting section 12940(a) because our Legislature has not added 

any language to the FEHA that parallels the language Congress added to Title VII to 

codify the ―motivating factor‖ standard of causation. On this view, Price Waterhouse‘s 

pre-1991 interpretation of the phrase ―because of‖ to incorporate a same-decision defense 
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to liability — and not Congress‘s 1991 amendments rejecting such a defense — is the 

relevant Title VII law that should guide our reading of the phrase ―because of‖ in section 

12940(a).

There is no reason to suppose, however, that the Legislature that enacted section 

12940(a) in 1980 (Stats. 1980, ch. 992, § 4, p. 3140 et seq.) intended to adopt Price 

Waterhouse‘s meaning of ―because of.‖ Nor is it accurate to say that Congress‘s 1991 

amendments to Title VII were intended to change the original, commonly understood

meaning of ―because of‖ in Title VII. The legislative history of the 1991 amendments 

tell a different story. The United States House of Representatives Education and Labor 

Committee report said the enactment of 42 U.S.C. § 2000e-2(m), which added the 

―motivating factor‖ language, was intended ―to restore the decisional law in effect in 

many of the federal circuits prior to the decision in Price Waterhouse‖ — decisions that 

had interpreted the ―because of‖ language in Title VII to mean that ―  ̳once the trier of 

fact has found that race was a factor influencing the decision . . . [and] once race is shown 

to be a causative factor, [the violation is established].‘ [Citation.]‖ (H.R. Rep. No. 102-

40 pt. 1, 1st Sess. p. 48 (1991).) Similarly, the House Judiciary Committee report said 

that 42 U.S.C. § 2000e-2(m) ―responds to Price Waterhouse by reaffirming that any 

reliance on prejudice in making employment decisions is illegal.‖ (H.R. Rep. No. 102-40 

pt. 2, 1st Sess., p. 2 (1991), italics added.) The legislative history thus indicates that 

Congress overruled Price Waterhouse‘s same-decision defense to liability on the belief 

that it was reaffirming and restoring, not revising, the meaning of the phrase ―because of‖ 

in Title VII‘s ban on employment discrimination.

The significance of this legislative history is not what it tells us about the original 

intent of the Congress that enacted Title VII in 1964. (See Bruesewitz v. Wyeth LLC

(2011) __ U.S. __ [131 S.Ct. 1068, 1081–1082] [post enactment legislative history ―is not 

a legitimate tool of statutory interpretation‖ because ―by definition [it]  ̳could have had 
15

no effect on the congressional vote‘ ‖].) Instead, what the legislative history makes clear 

is that Congress in 1991 did not understand the phrase ―because of‖ in Title VII to mean 

what Price Waterhouse said it means, and in order to overrule Price Waterhouse, 

Congress wrote its understanding into the statute. The addition of the ―motivating factor‖ 

language of 42 United States Code section 2000e-2(m) was intended to elaborate and 

make explicit what Congress believed to be the meaning of the phrase ―because of‖ in 

Title VII, not to create an entirely new or separate standard of causation. (See Tyler v. 

University of Arkansas Board of Trustees (8th Cir. 2011) 628 F.3d 880, 890 [―Title VII 

prohibits employers from  ̳[discriminating against any individual] because of such 

individual‘s . . . sex.‘ 42 U.S.C. § 2000e-2(a)(1). Discrimination  ̳because of‘ sex occurs 

when sex is  ̳a motivating factor for any employment practice, even though other factors 

also motivated the practice.‘ 42 U.S.C. § 2000e-2(m).‖].) Thus, we do not agree with the 

City that only Price Waterhouse‘s interpretation in 1989, and not Congress‘s 

understanding in 1991, illuminates what the phrase ―because of‖ means in Title VII or 

what it must have meant to the Legislature that enacted the FEHA. The history of Title 

VII does not reveal one ―true‖ meaning of the phrase, but rather different understandings 

of congressional intent at different times.

This point is underscored by the high court‘s more recent decision in Gross, supra, 

557 U.S. 167, addressing the meaning of the phrase ―because of‖ in the context of a 

different antidiscrimination statute. As noted earlier, Gross interpreted the Age 

Discrimination in Employment Act‘s prohibition on discrimination ―because of [an] 

individual‘s age‖ to mean that a plaintiff has the burden of proving ―but for‖ causation. 

(Id. at pp. 176–177.) The high court observed that ―[u]nlike Title VII, the ADEA‘s text 

does not provide that a plaintiff may establish discrimination by showing that age was 

simply a motivating factor. Moreover, Congress neglected to add such a provision to the 

ADEA when it amended Title VII to add §§ 2000e-2(m) and 2000e-5(g)(2)(B), even 
16

though it contemporaneously amended the ADEA in several ways [citations].‖ (Id. at 

p. 174.) These textual differences led the high court to conclude that the phrase ―because 

of‖ in the ADEA should not be construed to incorporate either the ―motivating factor‖ 

standard of causation or the burden-shifting framework established by Price Waterhouse. 

(Gross, supra, at pp. 174–175 & fn. 2, 178, fn. 5.) While rejecting the view that 

―  ̳motivating factor‘ claims were already part of Title VII‖ before 1991 (id. at p. 178, 

fn. 5), Gross cast no doubt on the fact that Congress added the ―motivating factor‖ 

language in order to elucidate, not to alter or supplant, what it believed to be the meaning 

of the phrase ―because of‖ in Title VII. (See Staub v. Proctor Hospital (2011) __ U.S. __ 

[131 S.Ct. 1186, 1191] [―[Title VII] prohibits employment discrimination  ̳because of . . .

race, color, religion, sex, or national origin‘ and states that such discrimination is 

established when one of those factors  ̳was a motivating factor for any employment 

practice, even though other factors also motivated the practice.‘ 42 U.S.C. §§ 2000e–

2(a), (m).‖ (italics added)].)

The City contends that because the phrase ―because of‖ appears in both the FEHA 

and the ADEA without the ―motivating factor‖ language that Congress added to Title 

VII, the ADEA — and not Title VII — is instructive on the meaning of ―because of‖ in 

the FEHA. A similar argument underlies the City‘s contention that Price Waterhouse‘s 

pre-1991 construction of the phrase ―because of‖ in Title VII, and not Congress‘s express 

definition of the phrase in 1991, should guide our interpretation of the same phrase in the 

FEHA. However, as Gross makes clear, the words ―because of,‖ standing alone, do not 

have a fixed or default meaning in legislative usage. In declining to follow Price 

Waterhouse‘s burden-shifting framework, Gross observed that the high court in prior 

cases had not construed the phrase ―because of‖ to have the same meaning in Title VII 

and the ADEA, thereby confirming that the same phrase can have different meanings in 

different antidiscrimination statutes. (See Gross, supra, 557 U.S. at p. 175, fn. 2 [―[T]he 
17

Court‘s approach to interpreting the ADEA in light of Title VII has not been uniform.‖].) 

What ultimately matters is legislative intent. Because Congress did not add the 

―motivating factor‖ language to the ADEA even as it contemporaneously amended the 

ADEA in other ways, one can infer — as the high court did in Gross — that Congress did 

not intend the phrase ―because of‖ to have the same meaning in the ADEA as it does in 

Title VII. (See Gross, at pp. 173–175.)

Here, there is no similar basis for inferring what our Legislature intended by the 

phrase ―because of‖ in section 12940(a). (See ante, at pp. 9–10 [explaining why no 

negative inference can be drawn from the addition of ―motivating factor‖ language to the 

FEHA‘s prohibition on housing discrimination].) The fact that the FEHA, unlike the 

post-1991 version of Title VII, does not expressly define the phrase ―because of‖ 

establishes the existence of an ambiguity. It does not establish that the default meaning 

of the phrase is what Price Waterhouse said Congress meant by the phrase in Title VII. 

Although we have often looked to federal antidiscrimination law in interpreting similar 

language in the FEHA, we have not previously encountered this kind of temporal and 

cross-statutory variation in Congress‘s purpose behind a particular provision. Because 

recourse to federal antidiscrimination law is instructive only to the extent that its purpose 

and the FEHA‘s purposes are aligned, we must ultimately focus our attention on what the 

Legislature said it sought to accomplish in enacting the FEHA. In the end, our 

interpretation of section 12940(a) must give effect to the Legislature‘s purpose.

III.

In enacting the FEHA, the Legislature spoke at length about its purposes. Section 

12920 states: ―It is hereby declared as the public policy of this state that it is necessary to 

protect and safeguard the right and opportunity of all persons to seek, obtain, and hold 

employment without discrimination or abridgment on account of race, religious creed, 

color, national origin, ancestry, physical disability, mental disability, medical condition, 
18

genetic information, marital status, sex, gender, gender identity, gender expression, age, 

or sexual orientation. [¶] It is recognized that the practice of denying employment 

opportunity and discriminating in the terms of employment for these reasons foments 

domestic strife and unrest, deprives the state of the fullest utilization of its capacities for 

development and advancement, and substantially and adversely affects the interests of 

employees, employers, and the public in general.‖

Section 12920 further declares: ―It is the purpose of this part to provide effective 

remedies that will eliminate these discriminatory practices.‖ And section 12920.5 

provides: ―In order to eliminate discrimination, it is necessary to provide effective 

remedies that will both prevent and deter unlawful employment practices and redress the 

adverse effects of those practices on aggrieved persons.‖

In addition, section 12921, subdivision (a) says: ―The opportunity to seek, obtain, 

and hold employment without discrimination because of race, religious creed, color, 

national origin, ancestry, physical disability, mental disability, medical condition, genetic 

information, marital status, sex, gender, gender identity, gender expression, age, or sexual 

orientation is hereby recognized as and declared to be a civil right.‖ Section 12993, 

subdivision (a) instructs that the FEHA ―shall be construed liberally for the 

accomplishment of [its] purposes.‖ 

In light of these legislatively declared purposes, this court has said: ―The policy 

that promotes the right to seek and hold employment free of prejudice is fundamental.‖ 

(Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220

(Commodore); see Brown v. Superior Court (1984) 37 Cal.3d 477, 485 [―As a matter of 

public policy, the FEHA recognizes the need to protect and safeguard the right and 

opportunity of all persons to seek and hold employment free from discrimination. 

(§ 12920.)‖].) Further, in explaining why sex discrimination in particular violates public 

policy, we have relied on section 12920 in saying: ―The public policy against sex 
19

discrimination and sexual harassment in employment . . . is plainly one that  ̳inures to the 

benefit of the public at large rather than to a particular employer or employee.‘

[Citation.] No extensive discussion is needed to establish the fundamental public interest 

in a workplace free from the pernicious influence of sexism. So long as it exists, we are 

all demeaned.‖ (Rojo v. Kliger (1990) 52 Cal.3d 65, 90, italics in original.)

Mindful of the FEHA‘s purposes, we proceed to address what legal consequences 

flow from an employer‘s proof that it would have made the same employment decision in 

the absence of any discrimination. To be clear, when we refer to a same-decision 

showing, we mean proof that the employer, in the absence of any discrimination, would 

have made the same decision at the time it made its actual decision. (See Price 

Waterhouse, supra, 490 U.S. at p. 252 [―proving  ̳ ―that the same decision would have 

been justified . . . is not the same as proving that the same decision would have been 

made‖ ‘ ‖]; ibid. [employer cannot make a same-decision showing ―by offering a 

legitimate and sufficient reason for its decision if that reason did not motivate it at the 

time of the decision‖].)

A.

We first consider whether a same-decision showing provides a complete defense 

to liability when a plaintiff has shown that an adverse employment action was motivated 

at least in part by discrimination. If not, then we must examine whether any relief may 

be awarded to the plaintiff where the employer shows it would have taken the same 

action in any event.

No Court of Appeal has squarely addressed these questions, although some have 

suggested in dicta and without analysis that mixed-motive cases should be analyzed 

under the Price Waterhouse framework. (See Huffman v. Interstate Brands Cos. (2004) 

121 Cal.App.4th 679, 702–703; Grant-Burton v. Covenant Care, Inc. (2002) 99 

Cal.App.4th 1361, 1379.) Significantly, the FEHC, the state agency that until recently 
20

was charged by the Legislature with ―establish[ing] a system of published opinions that 

shall serve as precedent in interpreting and applying the provisions of [the FEHA]‖

(former § 12935, subd. (h), Stats. 2011, ch. 719, § 175), has long interpreted the phrase 

―because of‖ in the FEHA in a manner similar to Congress‘s 1991 understanding of Title 

VII‘s causation requirement. In Department of Fair Employment and Housing v.

Church’s Fried Chicken, Inc. (1990) FEHC Dec. No. 90-11, 1990 WL 312878, the FEHC 

held that section 12940(a) ―deems discriminatory all conduct that is caused in any part by 

its victim‘s race or other prohibited basis of discrimination‖ and that liability is 

established when ―a preponderance of all the evidence demonstrates that the adverse 

employment action was caused at least in part by a discriminatory motive.‖ (1990 WL at 

p. *11.) Under the FEHC‘s interpretation, as under Title VII, a same-decision showing 

precludes various remedies but does not provide a complete defense to liability. (Id. at 

p. *15.) ―We assign great weight to the interpretations an administrative agency like the 

FEHC gives to the statutes under which it operates, although ultimately statutory 

interpretation is a question of law the courts must resolve.‖ (Reno v. Baird (1998) 18 

Cal.4th 640, 660.)

In addressing the issue presented, we begin by drawing a distinction between two 

related but different purposes of the FEHA noted above. First, the FEHA aims ―to 

provide effective remedies that will . . . redress the adverse effects of [discriminatory] 

practices on aggrieved persons.‖ (§ 12920.5.) The FEHA recognizes that every 

individual has a ―civil right‖ to enjoy ―[t]he opportunity to seek, obtain, and hold 

employment without discrimination‖ (§ 12921, subd. (a)), and when that right is violated, 

the FEHA seeks to restore aggrieved persons to the position they would have occupied 

had the discrimination not occurred.

Second, separate and apart from its compensatory purpose, the FEHA aims ―to 

provide effective remedies that will . . . prevent and deter unlawful employment 
21

practices.‖ (§ 12920.5.) This forward-looking goal of preventing and deterring unlawful 

discrimination goes beyond the tort-like objective of compensating an aggrieved person 

for the effects of any wrongs done in an individual case. It is rooted in the Legislature‘s 

express recognition that employment discrimination ―foments domestic strife and unrest, 

deprives the state of the fullest utilization of its capacities for development and 

advancement, and substantially and adversely affects the interests of employees, 

employers, and the public in general.‖ (§ 12920.) This broader purpose underlying the 

FEHA is also reflected in our recognition of ―the fundamental public interest in a 

workplace free from the pernicious influence of sexism. So long as it exists, we are all

demeaned.‖ (Rojo v. Kliger, supra, 52 Cal.3d at p. 90, italics in original.)

In 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. As we explain below, mere discriminatory thoughts or stray remarks

are not sufficient to establish liability under the FEHA. But it would tend to defeat the 

preventive and deterrent purposes of the FEHA to hold that a same-decision showing 

entirely absolves an employer of liability when its employment decision was substantially 

motivated by discrimination.

In considering this issue, it is useful to have in mind the kind of case in which 

discrimination, though not a ―but for‖ cause of an adverse employment action (because 

the employer can show it would have taken the same action in any event), might 

nonetheless be found to be a substantial motivating factor. The facts of Price 

Waterhouse provide a pertinent example. (See Price Waterhouse, supra, 490 U.S. at 

pp. 232–237.) Ann Hopkins had worked at Price Waterhouse, a nationwide accounting 

firm, for five years when the partners in her office put her up for partnership in 1982. At 
22

the time, there were seven women among the firm‘s 662 partners, and among the 88 

people put up for partnership that year, Hopkins was the only woman. As part of the 

review process, all of the firm‘s partners were invited to submit comments on each 

candidate. The firm‘s admissions committee reviewed the comments and interviewed the 

partners who submitted them. Then, for each candidate, the admissions committee issued

a recommendation to the firm‘s policy board to grant partnership, to deny the promotion, 

or to hold the candidate for possible reconsideration. The policy board then decided

whether to submit the candidate to the entire partnership for a vote, to reject the 

candidate, or to hold the candidate. ―The recommendation of the Admissions Committee, 

and the decision of the Policy Board, [were] not controlled by fixed guidelines . . . . Price 

Waterhouse place[d] no limit on the number of persons whom it will admit to the 

partnership in any given year.‖ (Id. at pp. 232–233.)

In support of Hopkins‘s candidacy, the partners in her office submitted a joint 

statement describing her ―outstanding performance‖ in securing a $25 million contract 

with the United States Department of State. The federal district court found that 

―  ̳[n]one of the other partnership candidates at Price Waterhouse that year had a 

comparable record in terms of successfully securing major contracts for the 

partnership.‘ ‖ (Price Waterhouse, supra, 490 U.S. at p. 234, quoting Hopkins v. Price 

Waterhouse (D.D.C. 1985) 618 F. Supp. 1109, 1112 (Hopkins).) The partners in 

Hopkins‘s office also praised her as ―  ̳an outstanding professional‘ ‖ with a ―  ̳deft 

touch‘ ‖ and ―  ̳strong character, independence and integrity.‘ ‖ A State Department 

official described her as ―  ̳extremely competent, intelligent,‘ ‖ ―  ̳strong and forthright,

very productive, energetic and creative.‘ ‖ ―Another high-ranking official praised [her]

decisiveness, broadmindedness, and  ̳intellectual clarity.‘ ‖ The federal district court 

―conclude[d] that Hopkins  ̳had no difficulty dealing with clients and her clients appear to 

have been very pleased with her work‘ and that she  ̳was generally viewed as a highly 
23

competent project leader who worked long hours, pushed vigorously to meet deadlines 

and demanded much from the multidisciplinary staffs with which she worked.‘ ‖ (Price 

Waterhouse, at p. 234, quoting Hopkins, at pp. 1112–1113.)

―On too many occasions, however, Hopkins‘ aggressiveness apparently spilled 

over into abrasiveness. Staff members seem to have borne the brunt of Hopkins‘ 

brusqueness. Long before her bid for partnership, partners evaluating her work had 

counseled her to improve her relations with staff members. Although later evaluations 

indicate an improvement, Hopkins‘ perceived shortcomings in this important area 

eventually doomed her bid for partnership. Virtually all of the partners‘ negative remarks 

about Hopkins — even those of partners supporting her — had to do with her 

 ̳interpersonal skills.‘ Both  ̳[s]upporters and opponents of her candidacy,‘ stressed [the 

district court],  ̳indicated that she was sometimes overly aggressive, unduly harsh, 

difficult to work with and impatient with staff.‘ ‖ (Price Waterhouse, supra, 490 U.S. at 

pp. 234–235, quoting Hopkins, supra, 618 F. Supp. at p. 1113.)

―There were clear signs, though, that some of the partners reacted negatively to 

Hopkins‘ personality because she was a woman. One partner described her as 

 ̳macho‘ . . . ; another suggested that she  ̳overcompensated for being a woman‘ . . . ; a 

third advised her to take  ̳a course at charm school. . . .‘ Several partners criticized her 

use of profanity; in response, one partner suggested that those partners objected to her 

swearing only  ̳because it‘s a lady using foul language.‘ Another supporter explained that 

Hopkins  ̳ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an 

authoritative, formidable, but much more appealing lady ptr candidate.‘. . . But it was the 

man who, as [the district court] found, bore responsibility for the Policy Board‘s decision 

to place her candidacy on hold who delivered the coup de grace: in order to improve her 

chances for partnership, Thomas Beyer advised, Hopkins should  ̳walk more femininely, 

talk more femininely, dress more femininely, wear make-up, have her hair styled, and 
24

wear jewelry.‘ ‖ (Price Waterhouse, supra, 490 U.S. at p. 235, quoting Hopkins, supra, 

618 F.Supp. at p. 1117, citations omitted.) Hopkins‘s candidacy was put on hold in 1982, 

and she was not put up for partnership again.

The district court ―found that Price Waterhouse legitimately emphasized 

interpersonal skills in its partnership decisions, and also found that the firm had not 

fabricated its complaints about Hopkins‘ interpersonal skills as a pretext for 

discrimination.‖ (Price Waterhouse, supra, 490 U.S. at p. 236.) At the same time, the 

district court found that Price Waterhouse had ―discriminated against Hopkins on the 

basis of sex by consciously giving credence and effect to partners‘ comments that 

resulted from sex stereotyping.‖ (Id. at p. 237.)

Another illustrative case in which discrimination could have been found to be a 

substantial motivating factor in an employment decision, though not necessarily a ―but 

for‖ cause, is Rowland v. American General Finance, Inc. (4th Cir. 2003) 340 F.3d 187 

(American General). In 1990, American General, a consumer lending company, hired 

Anita Rowland as an administrative assistant in its Lynchburg office. In 1991, George 

Roach, the director of operations responsible for the company‘s various district offices, 

promoted Rowland to branch manager of the Lynchburg office. In 1994, Roach asked 

Rowland to transfer to the company‘s Danville office to turn that office around. Rowland 

reluctantly agreed, and under her leadership, the Danville office improved.

Rowland ―allege[d] that Rowland promised her that she  ̳would be the next person 

to be promoted‘ to District Manager if she would transfer to Danville. Although it is not 

clear exactly what Roach said to Rowland, there is no dispute that Roach did in fact 

consider Rowland to be a candidate for the position of district manager. . . . [¶] However, 

notwithstanding its need to appoint a new district manager on three occasions in 1995, 

American General never promoted Rowland to that position.‖ (American General, supra, 

340 F.3d at p. 189.)
25

―Indisputably, Rowland‘s performance reviews revealed sufficient qualifications 

for a promotion to the district manager position. Indeed, throughout her employment 

with American General, Rowland received  ̳favorable annual performance reviews‘ and 

annual merit-based pay increases. Her supervisors generally found that her job 

performance exceeded standards, that she was extremely dedicated and hard working, 

and that she comported herself with a high-level of professionalism.

―At the same time, however, Rowland‘s annual reviews from 1995 and 1996 

suggested that she needed to work on her  ̳people skills.‘ Moreover, shortly after 

American General refused to promote Rowland for the third time, Roach received a copy 

of a written complaint that a customer, who was apparently dissatisfied with the way 

Rowland had handled his attempt to cancel a loan, had filed with the State Corporation 

Commission. Upon inquiring into the matter, Roach learned that several employees and 

former managers felt that Rowland had problems with her  ̳people skills.‘ Specifically, 

Roach learned that Rowland‘s supposed difficulty in checking her ambitions and her 

inability to delegate sometimes alienated those who worked with her.‖ (American 

General, supra, 340 F.3d at p. 190.)

When Roach met with Rowland in 1996 to explain why she had not been 

promoted, ―he recounted some of the reported problems and suggested that she needed to 

work on her people skills.‖ (American General, supra, 340 F.3d at p. 190.) According to 

Rowland, when she pressed Roach further, ―Rowland stated plainly,  ̳I just don‘t need 

another woman in this position, particularly one like Shelby Bennett.‘ ‖ (Ibid.) ―[W]hen 

Rowland had previously voiced her concerns to the same Shelby Bennett, a female 

district manager at American General, Bennett responded:  ̳that‘s just life at American 

General. That‘s the way it is. The men run the company, and you just have to do what 

they say.‘ ‖ (Ibid.)
26

In analyzing these facts, the Fourth Circuit said: ―It is possible that Rowland‘s

shortcomings . . . could have provided the sole basis for denying her the promotion she 

sought. It is also possible, however, that her alleged  ̳people skills‘ deficiency constituted 

part of a larger mix of motivations, including the fact that she was a woman, that 

collectively drove the decision not to promote her.‖ (American General, supra, 340 F.3d 

at p. 193.) The court said that although ―Rowland had almost no chance of prevailing‖ if 

sex discrimination had to be the ―but for‖ cause of her lack of promotion, the evidence of 

discrimination ―certainly suffices‖ to support a finding that sex was a motivating factor in 

the company‘s refusal to promote Rowland. (Ibid.; see ibid. [―In sum, Rowland provided 

evidence that Roach — the supervisor who knew of her qualifications for and interest in 

the district manager position and who had the power to promote her but did not do so —

told her that he did not need any more women in the position that she sought, as well as 

statements by another female superior suggesting that sex was a  ̳motivating factor‘ in 

employment decisions at American General.‖].)

As these cases illustrate, to say that discrimination was not the ―but for‖ cause of 

an employment decision is not to say that discrimination played an insignificant role or 

that it necessarily played a lesser role than other, nondiscriminatory factors. Indeed, 

evidence that an employer doesn‘t ―  ̳need another woman in this position‘ ‖ (American 

General, supra, 340 F.3d at p. 190) or that a company only promotes women who ―walk 

femininely, talk femininely, dress femininely, [and] wear make-up‖ (Price-Waterhouse, 

supra, 490 U.S. at p. 235) may permit the jury to conclude that improper discrimination 

was a sufficient factor by itself to bring about an employment decision, even if the 

employer can show that legitimate factors also would have been sufficient, absent the 

discrimination, to produce the same decision. We do not suggest that discrimination 

must be alone sufficient to bring about an employment decision in order to constitute a 

substantial motivating factor. But it is important to recognize that discrimination can be 
27

serious, consequential, and even by itself determinative of an employment decision 

without also being a ―but for‖ cause.

We believe that allowing a same-decision showing to immunize the employer 

from liability in circumstances like those facing Ann Hopkins and Anita Rowland would 

tend to defeat the purposes of the FEHA. Whether or not an employee in their respective 

positions would have been promoted in any event, the existence of facts from which a 

jury could find that improper bias was a substantial factor motivating the employer‘s 

decision is sufficient to establish discriminatory conduct that ―foments domestic strife 

and unrest, deprives the state of the fullest utilization of its capacities for development 

and advancement, and substantially and adversely affects the interests of employees, 

employers, and the public in general.‖ (§ 12920.) Such discrimination, even if not a ―but 

for‖ cause of the disputed employment action, would breed discord and resentment in the 

workplace if allowed to be committed with impunity.

The FEHA‘s express purpose of ―provid[ing] effective remedies that will . . . 

prevent and deter unlawful employment practices‖ (§ 12920.5) suggests that section 

12940(a)‘s prohibition on discrimination is not limited to instances where discrimination 

is a ―but for‖ cause of the employment decision. An adverse employment decision 

substantially corrupted by racial, gender, or other improper discrimination may be

indicative of a recurrent policy or practice. A company‘s practice of sex stereotyping or a 

supervisor‘s refusal to promote ―another woman‖ may not be determinative for a 

particular job applicant, but it may be determinative for a future applicant if left 

unsanctioned and allowed to persist as a lawful employment practice. We do not believe 

the Legislature intended to legitimize such practices, and the FEHA does not envision 

that individuals and the general public must tolerate discriminatory treatment in 

employment decisionmaking until it finally costs someone a job or promotion. Instead, 

the Legislature expressly sought to ―prevent and deter unlawful employment practices‖ 
28

(§ 12920.5, italics added) — in other words, to keep unlawful practices from happening 

in the first place. When discrimination has been shown to be a substantial factor 

motivating an employment action, a declaration of its illegality serves to prevent that 

discriminatory practice from becoming a ―but for‖ cause of some other employment 

action going forward.

Moreover, without such prevention and deterrence, a person in Hopkins‘s or 

Rowland‘s position may well decide against applying for a job, seeking a promotion, or 

persisting in a training program in view of an employer‘s demonstrated bias. An uneven 

playing field tends to discourage people from entering the competition. The 

understandable reluctance of an individual to submit herself to an employment process 

that is demonstrably stacked against persons who share her protected characteristic 

further insulates the employer‘s discriminatory practice from judicial sanction, while also 

―depriv[ing] the state of the fullest utilization of its capacities for development and 

advancement.‖ (§ 12920.) Given the FEHA‘s statement of its purposes and the harms it 

sought to address, we cannot ascribe to the Legislature an intent to deem lawful any 

discriminatory conduct that is not the ―but for‖ cause of an adverse employment action 

against a particular individual. When a plaintiff has shown that an employment decision 

has been substantially motivated by discrimination, its harms cannot be assessed solely 

by reference to its consequences for that individual. As we have said, the public policy 

against employment discrimination ―  ̳inures to the benefit of the public at large rather 

than to a particular employer or employee.‘ [Citation.]‖ (Rojo v. Kliger, supra, 52 

Cal.3d at p. 90, italics added.) It was precisely to address these wide-ranging harms that 

the Legislature recognized through the FEHA ―the fundamental public interest in a 

workplace free from the pernicious influence of [discrimination].‖ (Ibid.)
29

We are mindful, however, that section 12940(a) does not purport to outlaw 

discriminatory thoughts, beliefs, or stray remarks that are unconnected to employment 

decisionmaking. Racist, sexist, or other biased comments in the workplace may give rise 

to a claim for unlawful harassment under a separate provision of the FEHA. (§ 12940, 

subd. (j); see Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 277–

278.) But such comments alone do not support a claim under section 12940(a), nor do 

bigoted thoughts or beliefs by themselves. Were it otherwise, the causation requirement 

in section 12940(a) would be eviscerated. Section 12940(a) does not prohibit 

discrimination ―in the air.‖ It prohibits discrimination that causes an employer ―to refuse 

to hire or employ the person or to refuse to select the person for a training program 

leading to employment, or to bar or to discharge the person from employment or from a 

training program leading to employment, or to discriminate against the person in 

compensation or in terms, conditions, or privileges of employment.‖ (§ 12940(a).)

In Price Waterhouse, Justice O‘Connor cautioned that neither ―stray remarks in 

the workplace,‖ ―statements by nondecisionmakers,‖ nor ―statements by decisionmakers 

unrelated to the decisional process itself‖ can establish, by themselves, that improper bias 

was in fact a motivating factor behind a particular employment decision. (Price 

Waterhouse, supra, 490 U.S. at p. 277 (conc. opn. of O‘Connor, J.).) ―Race and gender 

always  ̳play a role‘ in an employment decision in the benign sense that these are human 

characteristics of which decisionmakers are aware and about which they may comment in 

a perfectly neutral and nondiscriminatory fashion. For example, in the context of [Price 

Waterhouse], a mere reference to  ̳a lady candidate‘ might show that gender  ̳played a 

role‘ in the decision, but by no means could support a rational factfinder‘s inference that 

the decision was made  ̳because of‘ sex.‖ (Ibid.)
30

In order to limit the range of evidence from which a rational fact-finder could 

conclude under Title VII that an employment decision was made ―because of‖ an 

illegitimate criterion, Justice O‘Connor proposed that ―a disparate treatment plaintiff 

must show by direct evidence that an illegitimate criterion was a substantial factor in the 

decision.‖ (Price Waterhouse, supra, 490 U.S. at p. 276 (conc. opn. of O‘Connor, J.), 

italics added.) Although a number of federal courts adopted Justice O‘Connor‘s direct 

evidence standard, it was ultimately rejected in Desert Palace, Inc. v. Costa (2003) 539 

U.S. 90. We agree with the high court in Desert Palace, Inc. v. Costa that the law 

generally makes no distinction between circumstantial and direct evidence absent some 

affirmative indication in a statute and that both types of evidence can be persuasive in 

discrimination cases. (See id. at pp. 99–100.)

Nevertheless, we believe Justice O‘Connor‘s concurring opinion in Price 

Waterhouse was correct to say that ―the plaintiff must produce evidence sufficient to 

show that an illegitimate criterion was a substantial factor in the particular employment 

decision.‖ (Price Waterhouse, supra, 490 U.S. at p. 278 (conc. opn. of O‘Connor, J.), 

italics added; see id. at p. 277 [concluding that ―decisionmakers [in Hopkins‘s case] 

placed substantial negative reliance on an illegitimate criterion‖].) Requiring the plaintiff 

to show that discrimination was a substantial motivating factor, rather than simply a

motivating factor, more effectively ensures that liability will not be imposed based on 

evidence of mere thoughts or passing statements unrelated to the disputed employment 

decision. At the same time, for reasons explained above, proof that discrimination was a 

substantial factor in an employment decision triggers the deterrent purpose of the FEHA 

and thus exposes the employer to liability, even if other factors would have led the 

employer to make the same decision at the time.
31

Given the wide range of scenarios in which mixed-motive cases might arise, we 

refrain from opining in the abstract on what evidence might be sufficient to show that 

discrimination was a substantial factor motivating a particular employment decision. In 

the present case, the jury was instructed under CACI No. 2500 to determine whether 

discrimination was ―a motivating factor/reason‖ for Harris‘s termination. We hold that 

that the jury should instead determine whether discrimination was ―a substantial 

motivating factor/reason,‖ and that the trial court on remand should determine in the first 

instance whether the evidence of discrimination in Harris‘s case warrants such an 

instruction.

B.

We turn now to consider the issue of remedies. If a plaintiff has shown that 

discrimination was a substantial factor motivating a termination decision, but the 

employer has shown that it would have made the same decision in any event, what relief 

is available to the plaintiff?

At the outset, we reject Harris‘s contention that a plaintiff who shows that 

discrimination was a motivating factor in a termination decision may be entitled to an 

order of reinstatement or backpay even when the employer proves it would have made 

the same decision without any discrimination. In the context of an allegedly unlawful 

termination, an order of reinstatement or backpay would not ―redress the adverse effects 

of [discriminatory] practices on aggrieved persons‖ (§ 12920.5) if legitimate, 

nondiscriminatory reasons would have led the employer to terminate the employee in any 

event. Although such remedies might help to ―prevent and deter unlawful employment 

practices‖ (ibid.), they would do so only at the cost of awarding plaintiffs an unjustified 

windfall and unduly limiting the freedom of employers to make legitimate employment 

decisions. Curtailing employers‘ prerogatives in this way — that is, forcing an employer 

to retain someone when it had sufficient and legitimate reasons not to do so — would 
32

cause inefficiency and would thus tend to ―deprive[] the state of the fullest utilization of 

its capacities for development and advancement,‖ contrary to the FEHA‘s purposes. 

(§ 12920.) The same is true with respect to any remedy for economic loss, such as front

pay for loss of future income. Such an award would provide the plaintiff with an 

unjustified windfall.

We come to the same conclusion with respect to noneconomic damages, although 

the issue is closer. There is no question that an employment decision motivated in 

substantial part by discrimination inflicts dignitary harm on the affected individual, even 

if the employer would have made the same decision in the absence of discrimination. 

The same-decision showing is a hypothetical, counterfactual construct. In mixed-motive 

cases like Price Waterhouse and American General, what happened in actuality is that 

discrimination played a substantial role in the employment decision (or at least a jury 

could so find), even if discrimination was not a ―but for‖ cause of the decision. For a

person in Ann Hopkins‘s or Anita Rowland‘s position, the sting of unequal treatment can 

be quite real even if the challenged employment action would have occurred in any event.

Although we do not doubt the stigmatic harm that discrimination can cause, we are 

reluctant to find such harm compensable in damages under the FEHA when other, 

nondiscriminatory factors would have brought about the plaintiff‘s discharge. 

Theoretically, it may be possible to distinguish, for example, between a plaintiff‘s 

emotional distress resulting specifically from discrimination and the plaintiff‘s emotional 

distress resulting from the termination itself. Practically, however, as Harris‘s counsel 

conceded at oral argument, it is unrealistic to ask the trier of fact to parse the plaintiff‘s 

past mental state so finely and to award only the quantum of damages that corresponds to 

the emotional distress resulting specifically from discrimination rather than the 

termination itself if the employer makes a same-decision showing. When an employee is 

fired, and when discrimination has been shown to be a substantial factor but not a ―but 
33

for‖ cause, we believe it is a fair supposition that the primary reason for the discharged 

employee‘s emotional distress is the discharge itself. Such distress is not compensable 

under the FEHA — indeed, compensation for such distress would be a windfall to the 

employee — if the employer proves it would have fired the employee anyway for lawful 

reasons.

Harris contends that we should not limit noneconomic damages remedies because 

the FEHA, unlike Title VII, does not and has not historically placed limitations on 

damages remedies. (See Peatros v. Bank of America (2000) 22 Cal.4th 147, 163, 166–

167.) But the fact that the FEHA permits ―all relief generally available in noncontractual 

actions‖ (Commodore, supra, 32 Cal.3d at p. 221) does not provide authorization to 

award damages that reflect the significant possibility of a windfall. Of course, the 

unavailability of noneconomic damages for a termination decision substantially 

motivated by discrimination does not preclude the possibility of liability in tort for 

intentional infliction of emotional distress. (See Agarwal v. Johnson (1979) 25 Cal.3d 

932; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493.) Emotional distress 

damages also may be available when an employee is subject to unlawful harassment 

under the FEHA. (See, e.g., Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 

958–959.) But given the inherent difficulties in disentangling the possible sources of a 

plaintiff‘s emotional distress upon being fired, we conclude that a termination decision 

substantially motivated by discrimination is not compensable in damages under section 

12940(a) when an employer makes a same-decision showing.

At the same time, however, the unavailability of damages upon an employer‘s 

same-decision showing does not make a finding of unlawful discrimination an empty 

gesture. Such a finding has several key consequences. First, proof that an adverse 

employment decision was substantially motivated by discrimination may warrant a 

judicial declaration of employer wrongdoing. Declaratory relief, where appropriate, may 
34

serve to reaffirm the plaintiff‘s equal standing among her coworkers and community, and 

to condemn discriminatory employment policies or practices. (See Code Civ. Proc., 

§ 1060 [a court may make a binding declaration of contested rights and duties].)

Second, upon a finding of unlawful discrimination, a court may grant injunctive 

relief where appropriate to stop discriminatory practices. (See Aguilar v. Avis Rent-ACar System, Inc. (1999) 21 Cal.4th 121, 131 [courts may grant injunctive relief under the 

FEHA to prevent discriminatory conduct from recurring]; cf. EEOC v. Ilona of Hungary

(7th Cir. 1997) 108 F.3d 1569, 1579 [finding unlawful discrimination on the basis of 

religion under Title VII and upholding injunctive relief ―where the individuals who were 

found to have discriminated remain the defendant‘s primary decision-makers‖].)

Third, when a plaintiff has proven unlawful discrimination, the plaintiff may be 

eligible for ―reasonable attorney‘s fees and costs.‖ (§ 12965, subd. (b).) Eligibility for 

attorney‘s fees fulfills the objectives of the statute for several reasons. An employee who 

has evidence that she has suffered employment discrimination is often not in the position 

to assess, at the start of litigation, whether the employer would have made the same 

decision without the discrimination. As between employer and employee, it may be

appropriate that the employer pay reasonable attorney‘s fees and costs for litigation for 

which its own wrongdoing has been shown to be substantially responsible. When the 

employer has made a same-decision showing, an award of reasonable attorney‘s fees and 

costs to the plaintiff, unlike an award of damages, carries no risk that the plaintiff will be 

put in a better position than if she had not suffered any discrimination. Instead, it 

compensates the plaintiff and her counsel for bringing a meritorious claim of unlawful 

discrimination.

Moreover, requiring an employer to absorb the costs of litigation for which its own 

wrongdoing is substantially responsible furthers the FEHA‘s goal of preventing and 

deterring unlawful employment practices. As explained earlier (ante, at pp. 27–29), the 
35

fact that discrimination does not result in compensable injury for a particular plaintiff 

does not mean that the employer‘s conduct will not have adverse consequences for other 

individuals or for society as a whole. A plaintiff‘s eligibility for reasonable attorney‘s

fees and costs will cause the employer to internalize to some degree the significant social 

costs of its discrimination, thereby promoting the FEHA‘s goal of deterring such 

discrimination.

An award of attorney‘s fees is discretionary under section 12965, subdivision (b). 

An award may take into account the scale of the plaintiff‘s success, and it must not 

encourage ―unnecessary litigation of claims that serve no public purpose either because 

they have no broad public impact or because they are factually or legally weak.‖ (Weeks 

v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1173.) Like Congress in enacting 

Title VII, our Legislature did not ―  ̳ enact[] legislation whose benefit inures primarily to 

lawyers in the form of a substantial fee recovery, even if relief to the plaintiff is otherwise 

trivial and the lawsuit promotes few public goals.‘ ‖ (Stevens v. Gravette Medical Center 

Hospital (W.D.Ark. 1998) 998 F.Supp. 1011, 1018.) The touchstone is 

―reasonable[ness].‖ (§ 12965, subd. (b).) In sum, we hold that a plaintiff subject to an 

adverse employment decision in which discrimination was a substantial motivating factor 

may be eligible for reasonable attorney‘s fees and costs expended for the purpose of 

redressing, preventing, or deterring that discrimination.

C.

The City cites several cases not involving employment discrimination statutes in 

support of its contention that an employer‘s same-decision showing should be a complete 

defense to liability. In Bekiaris v. Board of Education (1972) 6 Cal.3d 575 (Bekiaris), a 

terminated probationary teacher sought reinstatement on the ground that his termination 

was caused by his exercise of First Amendment rights rather than performance-related 

reasons alleged by school authorities. We held that if the school board would have 
36

dismissed the teacher notwithstanding its dissatisfaction with the teacher‘s exercise of 

constitutional rights, then the dismissal must be upheld. (Id. at p. 593.) We said that ―we 

cannot allow a teacher genuinely dismissed for valid causes to be reinstated because 

school authorities were also displeased with his exercise of constitutional rights,‖ because 

―were [it] otherwise a teacher about to be dismissed for valid causes could insulate 

himself from dismissal simply by engaging in political activities offensive to his 

superiors.‖ (Id. at p. 593, fn. 12.)

Bekiaris presaged the United States Supreme Court‘s decision in Mt. Healthy City 

Board of Education v. Doyle (1977) 429 U.S. 274 (Mt. Healthy), where a teacher 

similarly alleged he was discharged for exercising his First Amendment rights and sought 

reinstatement with backpay. The high court said that once a plaintiff shows that the 

protected speech was a ―  ̳substantial‘ ‖ or ―  ̳motivating factor,‘ ‖ the burden shifts to the 

employer to show ―by a preponderance of the evidence that it would have reached the 

same decision as to [the plaintiff] even in the absence of the protected conduct.‖ (Id. at 

p. 287.) If the employer makes such a showing, then the dismissal is lawful, and the 

school board need not rehire the teacher. (Id. at pp. 285–286.) The high court explained 

that the employee should not be put ―in a better position as a result of the exercise of 

constitutionally protected conduct than he would have occupied had he done nothing.‖ 

(Id. at p. 285.)

In Williams v. City of Los Angeles (1988) 47 Cal.3d 195 (Williams), a police 

officer was discharged without receiving proper advisements under the Public Safety 

Officers Procedural Bill of Rights (§ 3300). Citing Mt. Healthy and Bekiaris, we held 

that ―reinstatement is not mandated if the employer can demonstrate that it would have 

reached the same decision even had the employee not engaged in protected conduct.‖ 

(Williams, at p. 205.) In addition, in Martori Brothers Distributors v. Agricultural Labor 

Relations Bd. (1981) 29 Cal.3d 721 (Martori Brothers), a case arising under the 
37

Agricultural Labor Relations Act, we considered whether an employee was entitled to 

reinstatement after being discharged in part because of his union activities and in part 

because of other factors. The court adopted the test elucidated in Mt. Healthy and in a 

National Labor Relations Board (NLRB) decision, Wright Line, a Division of Wright 

Line, Inc. (1980) 105 L.R.R.M. 1169, 1171–1173. ―Under Wright Line, once the 

employee has shown that his union activities were a motivating factor in the employer‘s 

decision to discharge him, the burden shifts to the employer to show that discharge would 

have occurred in any event.‖ (Martori Brothers, at p. 730.) ―When it is shown that the 

employee is guilty of misconduct warranting discharge, the discharge should not be 

deemed an unfair labor practice unless the board determines that the employee would 

have been retained  ̳but for‘ his union membership or his performance of other protected 

activities.‖ (Ibid.; see also NLRB v. Transportation Management Corp. (1983) 462 U.S. 

393, 401–402, 404 (Transportation Management) [finding Wright Line‘s interpretation of 

the National Labor Relations Act to be reasonable].)

The City argues that we should follow these cases and hold that an employer‘s 

same-decision showing defeats liability under section 12940(a). However, the cases 

above focused on the unavailability of reinstatement and backpay where such remedies 

would result in a windfall to the discharged employee. (See Transportation 

Management, supra, 462 U.S. at pp. 397–403; Mt. Healthy, supra, 429 U.S. at pp. 276, 

285; Williams, supra, 47 Cal.3d at pp. 204–205; Martori Brothers, supra, 29 Cal.3d at 

pp. 729–730; Bekiaris, supra, 6 Cal.3d at pp. 580, 592–593.) Our opinion today affirms 

that reinstatement and backpay are unavailable under the FEHA upon an employer‘s 

same-decision showing because a terminated employee should not be put in a better 

position than she would have occupied had the discrimination not occurred. What the 

cases above do not hold is that a same-decision showing precludes a finding of unlawful 

motive that provides a predicate for declaratory or injunctive relief. Indeed, in Williams, 
38

even as we held that ―the trial court abused its discretion in ordering Williams reinstated‖ 

(Williams, supra, 47 Cal.3d at p. 206), we said ―[i]t is uncontested that his rights were 

violated‖ under the applicable statute (id. at p. 201).

IV.

We now address a few remaining issues raised by Harris and then summarize our 

holding in this case.

A.

Harris argues that if we permit any type of same-decision showing, we should hold 

the employer to a higher standard of proof. A same-decision defense, Harris contends, 

must be proven by clear and convincing evidence rather than by a preponderance of the 

evidence. We reject this view.

The rationale for requiring clear and convincing evidence is similar to the rationale 

for shifting the burden to the employer to negate ―but for‖ causation upon a showing that 

discrimination substantially motivated an employment decision. As Day v. Matthews

(D.C. Cir. 1976) 530 F.2d 1083 explained in the context of Title VII: ―  ̳Unquestionably, 

it is now impossible for an individual discriminatee to recreate the past with exactitude.‘ 

[Citation.] Such a showing is impossible precisely because of the employer‘s unlawful 

action; it is only equitable that any resulting uncertainty be resolved against the party 

whose action gave rise to the problem.‖ (Id. at p. 1086, fn. omitted.) In Price 

Waterhouse, however, the high court rejected the clear and convincing standard, noting 

that exceptions to the preponderance of the evidence standard generally applicable to 

civil litigation ―are uncommon, and in fact are ordinarily recognized only when the 

government seeks to take unusual coercive action — action more dramatic than entering 

an award of money damages or other conventional relief — against an individual.‖ 

(Price Waterhouse, supra, 490 U.S. at p. 253 (plur. opn. of Brennan, J.); see id. at p. 260 

(conc. opn. of White, J.); id. at p. 261 (conc. opn. of O‘Connor, J.).) As examples, the 
39

plurality cited cases involving termination of parental rights, involuntary commitment, 

deportation, and denaturalization. (Id. at p. 253.) The plurality further noted: ―Only 

rarely have we required clear and convincing proof where the action defended against 

seeks only conventional relief, see, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 

(1974) (defamation), and we find it significant that in such cases it was the defendant 

rather than the plaintiff who sought the elevated standard of proof — suggesting that this 

standard ordinarily serves as a shield rather than, as [plaintiff] seeks to use it, as a 

sword.‖ (Price Waterhouse, at p. 253.)

In California, we have recognized that ―  ̳the standard of proof may depend upon 

the ―gravity of the consequences that would result from an erroneous determination of the 

issue involved.‖ ‘ [Citations.] The default standard of proof in civil cases is the 

preponderance of the evidence. (Evid. Code, § 115.) . . . [¶] We applied the clear and 

convincing evidence standard, for example, in Conservatorship of Valerie N. [(1985)] 40 

Cal.3d 143, 168, to ensure that a conservator‘s decision to authorize sterilization of a 

developmentally disabled conservatee was truly in the latter‘s best interests. We have 

also applied the clear and convincing evidence standard to findings necessary to 

terminate parental rights [citation] and to findings supporting the discipline of judges 

[citations]. The Courts of Appeal have required clear and convincing evidence of a 

person‘s inability to provide for his or her personal needs as a prerequisite to the 

appointment of a conservator [citation], and of a conservatee‘s incompetence to accept or 

reject treatment as a prerequisite to permitting involuntary electroconvulsive therapy 

[citation].‖ (Conservatorship of Wendland (2001) 26 Cal.4th 519, 546, fn. omitted.) We 

also applied the clear and convincing evidence standard in Wendland in the context of a 

conservator‘s decision to withdraw nutrition and hydration from a severely disabled 

conservatee. (Id. at p. 524.)
40

But we have not applied a heightened proof standard to cases with ordinary civil 

remedies, and we are aware of no mixed-motive case since Price Waterhouse and the 

1991 amendments to Title VII (which also declined to adopt a clear and convincing 

evidence standard) that has applied anything but a preponderance of the evidence to an 

employer‘s same-decision showing. Harris points to Labor Code section 1102.6, which 

requires the employer to prove a same-decision defense by clear and convincing evidence 

when a plaintiff has proven by a preponderance of the evidence that the employer‘s

violation of the whistleblower statute (id., § 1102.5) was a ―contributing factor‖ to the 

contested employment decision. Yet the inclusion of the clear and convincing evidence 

language in one statute does not suggest that the Legislature intended the same standard 

to apply to other statutes implicating the same-decision defense. (See Scientific Cages, 

Inc. v. Banks (1978) 81 Cal.App.3d 885, 889 [―  ̳[T]he use of interpretation by reference 

to analogous but unrelated statutes . . . . is to be used with caution ―for the reason that by 

way of contrast an inclusion or exclusion may show an intent exactly contrary to that 

expressed by the analogous legislation.‖ ‘ ‖].) Because employment discrimination 

litigation does not resemble the kind of cases in which we have applied the clear and 

convincing standard, we hold that preponderance of the evidence is the standard of proof 

applicable to an employer‘s same-decision showing.

B.

Harris also contends that even if we conclude that a jury should receive some type 

of same-decision instruction in cases potentially involving mixed motives, the instruction 

should not have been given here because the same-decision showing was an affirmative 

defense that the City did not plead in its answer to Harris‘s complaint. We hold that the 

City‘s failure to plead this defense did not bar such an instruction.
41

Code of Civil Procedure section 431.30, subdivision (b) provides that an answer to 

the complaint ―shall contain,‖ in addition to a ―general or specific denial‖ of the 

complaint‘s allegations, ―[a] statement of any new matter constituting a defense.‖ It has 

long been held that ―if the onus of proof is thrown upon the defendant, the matter to be 

proved by him is new matter.‖ (Piercy v. Sabin (1858) 10 Cal. 22, 27; see also 5 Witkin, 

Cal. Procedure (5th ed. 2008) Pleading, § 1081, pp. 514–515.) Because the burden is on 

a defendant to make a same-decision showing, it should plead this defense. In other 

words, if an employer wishes to assert the defense, it should plead that if it is found that 

its actions were motivated by both discriminatory and nondiscriminatory reasons, the 

nondiscriminatory reasons alone would have induced it to make the same decision.

However, ―[n]o error or defect in a pleading is to be regarded unless it affects 

substantial rights.‖ (Buxbom v. Smith (1944) 23 Cal.2d 535, 542, citing Code Civ. Proc., 

§ 475.) The primary function of a pleading is to give the other party notice so that it may 

prepare its case (Leet v. Union Pac. R.R. Co. (1944) 25 Cal.2d 605, 619), and a defect in 

a pleading that otherwise properly notifies a party cannot be said to affect substantial 

rights. This principle is consistent with the rule that leave to amend a pleading should be 

liberally granted as long as there is no timeliness problem under a statute of limitations or 

prejudice to the opposing party. (Kolani v. Gluska (1999) 64 Cal.App.4th 402, 412; see 

also 5 Witkin, Cal. Procedure, supra, Pleading, § 1194, pp. 625–627.) 

In the present case, the City pleaded in its answer that ―[a]ny alleged adverse 

employment actions of which plaintiff complains . . . were not based on plaintiff‘s gender 

and/or sex, pregnancy or any other alleged discriminatory practice, but instead were 

based on one or more legitimate nondiscriminatory reasons. Nor were any of the 

employment actions of defendant taken under pretext.‖ This put Harris on notice that the 

City intended to defend on the basis that it had not discriminated against her and had a 

legitimate reason for discharging her. The City‘s defense at trial was consistent with that 
42

intention. Harris would not have been prejudiced by an instruction that informed the jury 

how to arrive at a verdict if the jury partly believed plaintiff‘s evidence of discrimination 

and partly believed the City‘s defense that the discharge was nondiscriminatory. 

Therefore, the fact that the City did not plead a same-decision defense did not adversely 

affect Harris‘s substantial rights, and the omission did not bar the trial court from giving a 

same-decision instruction.

Harris further argues that for equitable reasons, an employer that wishes to make a 

same-decision showing must concede that it had mixed motives for taking the adverse 

employment action instead of denying a discriminatory motive altogether. But there is no 

inconsistency when an employer argues that its motive for discharging an employee was 

legitimate, while also arguing, contingently, that if the trier of fact finds a mixture of 

lawful and unlawful motives, then its lawful motive alone would have led to the 

discharge. Even if the positions were inconsistent, ―  ̳ ―[i]t is well settled in California 

that a defendant may plead as many inconsistent defenses in an answer as she may desire 

and that such defenses may not be considered as admissions against interest in the action 

in which the answer was filed.‖ ‘ ‖ (Park City Services, Inc. v. Ford Motor Co., Inc.

(2006) 144 Cal.App.4th 295, 309.)

C.

In sum, we construe section 12940(a) as follows: When a plaintiff has shown by a 

preponderance of the evidence that discrimination was a substantial factor motivating his 

or her termination, the employer is entitled to demonstrate that legitimate, 

nondiscriminatory reasons would have led it to make the same decision at the time. If the 

employer proves by a preponderance of the evidence that it would have made the same 

decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an 

order of reinstatement. However, where appropriate, the plaintiff may be entitled to 
43

declaratory or injunctive relief. The plaintiff also may be eligible for an award of 

reasonable attorney‘s fees and costs under section 12965, subdivision (b).

In the present case, the trial court gave CACI No. 2500, which required the jury to 

determine whether discrimination was ―a motivating factor/reason‖ for Harris‘s 

termination. The City requested that the jury be instructed pursuant to BAJI No. 12.26: 

―If you find that the employer‘s action, which is the subject of plaintiff‘s claim, was 

actually motivated by both discriminatory and nondiscriminatory reasons, the employer is 

not liable if it can establish by a preponderance of the evidence that its legitimate reason, 

standing alone, would have induced it to make the same decision. [¶] An employer may 

not, however, prevail in a mixed-motives case by offering a legitimate and sufficient 

reason for its decision if that reason did not motivate it at the time of the decision. 

Neither may an employer meet its burden by merely showing that at the time of the 

decision it was motivated only in part by a legitimate reason. The essential premise of 

this defense is that a legitimate reason was present, and standing alone, would have 

induced the employer to make the same decision.‖

In light of today‘s decision, a jury in a mixed-motive case alleging unlawful 

termination should be instructed that it must find the employer‘s action was substantially 

motivated by discrimination before the burden shifts to the employer to make a samedecision showing, and that a same-decision showing precludes an award of reinstatement, 

backpay, or damages. The trial court on remand should determine in the event of a retrial 

whether the evidence of discrimination in Harris‘s case warrants a mixed motive 

instruction.
44

CONCLUSION

The judgment of the Court of Appeal overturning the damages verdict is affirmed, 

and the cause is remanded for further proceedings consistent with this opinion.

LIU, J.

WE CONCUR:*

CANTIL-SAKAUYE, C. J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

 

* Baxter, J. is recused pursuant to an order filed on January 15, 2013.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Harris v. City of Santa Monica

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 181 Cal.App.4th 1094

Rehearing Granted

__________________________________________________________________________________

Opinion No. S181004

Date Filed: February 7, 2013

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Soussan G. Bruguera

__________________________________________________________________________________

Counsel:

Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Barbara C. Greenstein, Carol Ann 

Rohr, Jeanette Schachtner, Anthony P. Serritella and Meishya Yang, Deputy City Attorneys, for Defendant and 

Appellant.

Law Offices of Steven Drapkin, Steven Drapkin; Paul, Hastings, Janofsky & Walker, Paul W. Cane, Jr., Katherine 

C. Huibonhoa and Elizabeth MacGregor for California Employment Law Council and Employers Group as Amici 

Curiae on behalf of Defendant and Appellant.

Melanie Poturica and Morin I. Jacob for League of California Cities and California State Association of Counties as 

Amici Curiae on behalf of Defendant and Appellant.

The deRubertis Law Firm, David M. deRubertis, Michael H. Leb, Kimberly Y. Higgins; Kokozian & Nourmand, 

The Nourmand Law Firm, Michael Nourmand; Pine & Pine, Norman Pine and Beverly Pine for Plaintiff and 

Respondent.

Joseph Grodin, Denise Hulett, Claudia Center, Sharon Terman and Tamika Butler for Legal Aid SocietyEmployment Law Center, American Civil Liberties Union of Northern California, ACLU Foundation of Southern 

California, American Civil Liberties Union of San Diego and Imperial Counties, California Women‘s Law Center, 

Disability Rights Advocates, Disability Rights California, Disability Rights Education and Defense Fund, Inc., 

Disability Rights Legal Center, Equal Rights Advocates, Impact Fund, Lambda Legal Defense and Education Fund 

Inc., Mexican American Legal Defense and Education Fund, National Center for Lesbian Rights and Women‘s 

Employment Rights Clinic of Golden Gate University School of Law as Amici Curiae on behalf of Plaintiff and 

Respondent.

Charlotte E. Fishman; Law Office of David J. Duchrow and David Duchrow for California Employment Lawyers 

Association as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Barbara C. Greenstein

Deputy City Attorney

1685 Main Street, Room 310

Santa Monica, CA 90401

(310) 458-8336

Paul W. Cane, Jr.

Paul, Hastings, Janofsky & Walker

55 Second Street, Twenty-Fourth Floor

San Francisco, CA 94105-3441

(415) 856-7000

David M. deRubertis

The deRubertis Law Firm

4219 Coldwater Canyon Avenue

Studio City, CA 91604

(818) 761-2322