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Mwaniki v. eBay9/23/2005
-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1223.)
Notwithstanding the substantial-factor jury instruction, there is no inconsistency in finding that (1) retaliation motivated plaintiff's discharge, but (2) the retaliation was not a substantial factor in causing harm to plaintiff.
FEHA prohibits an employer from terminating or otherwise discriminating against an employee on enumerated grounds, including race. (§ 12940, subds. (a), (j)(1).) It also prohibits an employer from retaliating against an employee because he or she has opposed practices forbidden under the FEHA. (§ 12940, subd. (h).) " `FEHA has its federal counterpart in title VII of the Federal Civil Rights Act of 1964 [citation]. Since the antidiscrimination objectives and public policy purposes of the two laws are the same, we may rely on federal decisions to interpret analogous parts of the state statute.' [Citations.]" (Heard v. Lockheed Missles & Space Co. (1996) 44 Cal.App.4th 1735, 1747 (Heard).)
"In general, there are two types of illegal discrimination. These are disparate treatment and disparate impact. Under the disparate treatment theory, with which we are concerned here, an individual is discriminated against when the employer `treats some people less favorably than others because of their race, color, religion, sex or national origin.' [Citation.] [ ] In disparate treatment cases, the plaintiff must prove the ultimate fact that the defendant engaged in intentional discrimination. [Citations.] An employer will be liable for intentional discrimination if it is shown that its employment decision was premised upon an illegitimate criterion." (Heard, supra, 44 Cal.App.4th at p. 1748.) The cases have recognized two types of disparate treatment employment-discrimination actions--"pretext" and "mixed-motive"--and have applied different standards of causation depending on the type of case the plaintiff presented. (Watson v. SEPTA (3d Cir. 2000) 207 F.3d 207, 215.) "This distinction in standards of causation in `mixed-motive' and `pretext' cases can be traced to the Supreme Court's decision in [Price Waterhouse v. Hopkins (1989) 490 U.S. 228]. There, the plurality held that once a plaintiff demonstrates that the adverse decision is the result of mixed motives (i.e., that it is the `result of multiple factors, at least one of which is illegitimate' and the illegitimate factor played `a motivating part' in the adverse decision), the burden shifts to the employer to persuade the jury by a preponderance of the evidence that it would have reached the same decision even if the protected trait had not been considered. [(Price Waterhouse v. Hopkins, supra, 490 U.S. at pp. 244-245, 260)] (plurality opinion). This shift in the burden of persuasion makes an employer potentially liable upon a causation showing--that an illegitimate criterion was a motivating, although not a determinative, factor in the adverse employment decision--that is less exacting than the causation test in the usual `pretext' case, where consideration of a protected trait must be shown to be a determinative factor in the adverse action. [Citation.] The Price Waterhouse plurality opinion also created an affirmative defense for the employer that, if proven, absolved the employer completely of any Title VII liability." (Ibid.)
In providing fifth and sixth votes, however, Justice White and Justice O'Connor more narrowly concluded that an illegitimate criterion must be a substantial factor in the adverse employment decision before the jury could make an inference that discrimination caused the decision which would, in turn, shift the burden of proof to an employer to prove the affirmative defense. (Price Waterhouse v. Hopkins, supra, 4
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