California Supreme Court alters how bias cases will be handled

Even if discrimination plays a role in a worker’s firing, an employer will not be liable for back pay or other compensation if the employee would have been fired anyway for poor performance, the California Supreme Court decided Thursday.

The 6-0 ruling, with one justice recused, is likely to change the way most discrimination cases are handled in California, lawyers in the case said.

In the past, employees could receive compensation, including back pay and damages, and win reinstatement if they could prove that discrimination was “a motivating factor” in a firing.

Now, employees will have to show that bias was a substantial motive, and the employer will then get the chance to argue that performance alone would have resulted in the worker’s termination.

The widely anticipated ruling was not a complete victory for employers, however. The court said employers would still have to pay a litigant’s attorney fees if a jury finds that illegal bias was involved. A judge also would have the option of issuing an injunction ordering the company to end discrimination.

“There is no question that an employment decision motivated in substantial part by discrimination inflicts dignitary harm on the affected individual,” Justice Goodwin Liu wrote for the court, “even if the employer would have made the same decision in the absence of discrimination.”

The decision overturned a jury award to a Santa Monica bus driver who was fired after revealing she was pregnant.

The city’s bus service insisted that she would have been fired regardless of her pregnancy because she had two accidents and failed twice to report to work on schedule. A jury awarded her about $178,000, mostly for mental suffering. Her sex discrimination complaint could be retried, but the jury would be instructed under the new rule.

Charlotte Fishman, an attorney for a lawyer group that represents workers in employment litigation, said the ruling would make it harder for workers to prevail in discrimination cases.

“This is kind of a surprise, and not a good one,” Fishman said.

Paul W. Cane, who represented employer groups in the case, called the decision “a mixed bag.”

“If the plaintiff lawyer can prove discrimination was a substantial motivating reason, they are going to put in large, attorney-fee bills even if their clients get nothing,” Cane said.

David M. deRubertis, who represented the employee in the case, said he was disappointed that the court did not preserve damages for emotional distress and punitive damages, but added that the ruling would not affect which lawsuits he files.

maura.dolan@latimes.com