2512 . Limitation on Remedies - Same Decision
[ Name of plaintiff ] claims that [he/she/ nonbinary pr onoun ] was
[discharged/[ other adverse employment action ]] because of
[his/her/ nonbinary pr onoun ] [ pr otected status or action, e.g., race, gender , or
age ], which is an unlawful [discriminatory/retaliatory] r eason. [ Name of
defendant ] claims that [ name of plaintiff ] [was discharged/[ other adverse
employment action ]] because of [ specify r eason, e.g., plaintiff’ s poor job
performance ], which is a lawful reason.
If you find that [discrimination/retaliation] was a substantial motivating
reason for [ name of plaintiff ]’ s [discharge/[ other adverse employment
action ]], you must then consider [ name of defendant ]’ s stated reason for
the [discharge/[ other adverse employment action ]].
If you find that [ e.g., plaintiff’ s poor job performance ] was also a
substantial motivating reason, then you must determine whether the
defendant has proven that [he/she/ nonbinary pr onoun /it] would have
[discharged/[ other adverse employment action ]] [ name of plaintiff ] anyway
at that time based on [ e.g., plaintiff’ s poor job performance ] even if [he/
she/ nonbinary pr onoun /it] had not also been substantially motivated by
[discrimination/retaliation].
In determining whether [ e.g., plaintiff’ s poor job performance ] was a
substantial motivating reason, determine what actually motivated [ name
of defendant ], not what [he/she/ nonbinary pr onoun /it] might have been
justified in doing.
If you find that [ name of defendant ] [discharged/[ other adverse employment
action ]] [ name of plaintiff ] for a [discriminatory/retaliatory] reason, you
will be asked to determine the amount of damages that [he/she/ nonbinary
pr onoun ] is entitled to recover . If, however , you find that [ name of
defendant ] would have [discharged/[ other adverse employment action ]]
[ name of plaintiff ] anyway at that time for [ specify defendant’ s
nondiscriminatory/nonr etaliatory r eason ], then [ name of plaintiff ] will not be
entitled to reinstatement, back pay , or damages.
New December 2013; Revised June 2015, June 2016
Directions for Use
Give this instruction along with CACI No. 2507, “Substantial Motivating Reason”
Explained , if the employee has presented suf ficient evidence for the jury to find that
the employer took adverse action against him or her for a prohibited reason, but the
employer has presented suf ficient evidence for the jury to find that it had a
legitimate reason for the action. In such a “mixed-motive” case, the employer is
relieved from an award of damages, but may still be liable for attorney fees and
costs and injunctive relief. (See Harris v . City of Santa Monica (2013) 56 Cal.4th
203, 21 1 [152 Cal.Rptr .3d 392, 294 P .3d 49].)
Mixed-motive must be distinguished from pretext though both require evaluation of
the same evidence, i.e., the employer ’ s purported legitimate reason for the adverse
action. In a pretext case, the only actual motive is the discriminatory one and the
purported legitimate reasons are fabricated in order to disguise the true motive. (See
City and County of San Francisco v . Fair Employment and Housing Com. (1987)
191 Cal.App.3d 976, 985 [236 Cal.Rptr . 716].) The employee has the burden of
proving pretext. ( Harris, supra, 56 Cal.4th at pp. 214-215.) If the employee proves
discrimination or retaliation and also pretext, the employer is liable for all potential
remedies including damages. But if the employee proves discrimination or
retaliation but fails to prove pretext, then a mixed-motive case is presented. T o
avoid an award of damages, the employer then has the burden of proving that it
would have made the same decision anyway solely for the legitimate reason, even
though it may have also discriminated or retaliated.
Sources and Authority
• “[U]nder 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 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 plaintif f in this circumstance could
still be awarded, where appropriate, declaratory relief or injunctive relief to stop
discriminatory practices. In addition, the plaintif f may be eligible for reasonable
attorney’ s fees and costs.” ( Harris, supra, 56 Cal.4th at p. 211.)
• “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” ( Harris, supra, 53 Cal.4th at p. 239.)
• “[W]hen 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 .” ( Harris, supra, 56 Cal.4th at p. 224, original
• “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.” ( Harris, supra, 56
Cal.4th at p. 241.)
• “W e do not suggest that discrimination must be alone suf f icient to bring about an
employment decision in order to constitute a substantial motivating factor . But it
is important to recognize that discrimination can be serious, consequential, and
CACI No. 2512 F AIR EMPLOYMENT AND HOUSING ACT
even by itself determinative of an employment decision without also being a ‘but
for ’ cause.” ( Harris, supra, 56 Cal.4th at p. 229.)
• “[A] plaintif f 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 plainti ff must then show that the
employer ’ s proffered nondiscriminatory reason was actually a pretext for
discrimination, and the plaintif f may of fer any other evidence of discriminatory
motive. The ultimate burden of persuasion on the issue of discrimination remains
with the plaintif f.” ( Harris, supra, 56 Cal.4th at pp. 214-215.)
• “In some cases there is no single reason for an employer ’ s adverse action, and a
discriminatory motive may have influenced otherwise legitimate reasons for the
employment decision. In Harris v . City of Santa Monica ( Harris ) the California
Supreme Court recognized the traditional McDonnell Douglas burden-shifting
test was intended for use in cases presenting a single motive for the adverse
action, that is, in ‘cases that do not involve mixed motives.’ As the Court
explained, this ‘framework . . . presupposes that the employer has a single
reason for taking an adverse action against the employee and that the reason is
either discriminatory or 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.’ ” ( Husman v . T oyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1 168, 1 182 [220 Cal.Rptr .3d 42], internal citations
• “Following the California Supreme Court’ s decision in Harris, . . . the Judicial
Council added CACI No. 2512, to be given when the employer presents
evidence of a legitimate reason for the adverse employment action, informing the
jurors that even if they find that discrimination was a substantial motivating
reason for the adverse action, if the employer establishes that the adverse action
nonetheless would have been taken for legitimate reasons, ‘then [the plaintif f]
will not be entitled to reinstatement, back pay , or damages.’ ” ( Davis v . Farmers
Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320−1321 [200 Cal.Rptr .3d 315].)
• “ ‘[Plaintif f] 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 ar guing,
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.’ ”
( Thornbr ough v . W estern Placer Unified School Dist. (2013) 223 Cal.App.4th
F AIR EMPLOYMENT AND HOUSING ACT CACI No. 2512
169, 199 [167 Cal.Rptr .3d 24] [quoting Harris, supra , 56 Cal.App.4th at p.
• “As a preliminary matter , we reject [defendant]’ s claim that the jury could have
found no liability on the part of [defendant] had it been properly instructed on
the mixed-motive defense at trial. As discussed, the Supreme Court in Harris
held that the mixed-motive defense is available under the FEHA, but only as a
limitation on remedies and not as a complete defense to liability . Consequently ,
when the plaintif f proves by a preponderance of the evidence that discrimination
was a substantial motivating factor in the adverse employment decision, the
employer is liable under the FEHA. When the employer proves by a
preponderance of the evidence that it would have made the same decision even
in the absence of such discrimination, the employer is still liable under the
FEHA, but the plaintif f’ s remedies are then limited to declaratory or injunctive
relief, and where appropriate, attorney’ s fees and costs. As presently drafted,
BAJI No. 12.26 does not accurately set forth the parameters of the defense as
articulated by the Supreme Court, but rather states that, in a mixed-motive case,
‘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.’ By providing that the mixed-motive defense, if proven, is a
complete defense to liability , [defendant]’ s requested instruction directly conflicts
with the holding in Harris . ( Alamo v . Practice Management Information Corp.
(2013) 219 Cal.App.4th 466, 481 [161 Cal.Rptr .3d 758], internal citations
• “Pretext may . . . be inferred from the timing of the company’ s termination
decision, by the identity of the person making the decision, and by the
terminated employee’ s job performance before termination.” ( Nazir v . United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 [100 Cal.Rptr .3d 296].)
Secondary Sources
8 W itkin, Summary of California Law (1 1th ed. 2017) Constitutional Law , §§ 1037,
7 W itkin, California Procedure (5th ed. 2008), Judgment § 217
3 W ilcox, California Employment Law , Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws , § 41.1 1 (Matthew Bender)
1 1 California Forms of Pleading and Practice, Ch. 1 15, Civil Rights: Employment
Discrimination , § 1 15.23 (Matthew Bender)
CACI No. 2512 F AIR EMPLOYMENT AND HOUSING ACT
Page last reviewed May 2024
Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America.
Lawyers - Get Listed Now! Get a free directory profile listing
