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




                                                           1
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 ―miss-
out.‖ 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



                                              2
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 miss-
out 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.



                                              3
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



                                               4
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



                                                   5
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



                                               6
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



                                               7
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




                                                8
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



                                                9
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



                                             10
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



                                              11
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,



                                             12
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



                                               13
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



                                              14
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



                                              15
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



                                              16
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,



                                              17
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



                                               18
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



                                              19
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



                                              20
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



                                              21
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



                                             22
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



                                             23
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.)



                                             24
       ―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.)




                                           25
       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



                                             26
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‖



                                              27
(§ 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.)




                                              28
       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.)




                                             29
       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.




                                             30
       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



                                             31
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



                                               32
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



                                             33
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-A-
Car 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



                                              34
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



                                              35
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



                                             36
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,



                                             37
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



                                              38
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.)




                                               39
       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.




                                              40
       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



                                             41
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




                                              42
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 same-
decision 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.




                                              43
                                    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.




                                           44
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 Society-
Employment 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
