Understanding the Same Decision Defense in Mixed Cause Employment Cases

As in other states, California allows employers who are being sued by employees to assert what is known as the same decision defense.

As the name suggests, this is a defense that admits that the employer retaliated, or discriminated against the employee. However, the defense is, because of other factors, the end result—the firing or other negative consequence suffered by the employee—would have been the same.

Multiple Causes

Another way of looking at the same decision defense, is to assume that there are multiple causes for an adverse employment action against an employee, some of which would have, on their own, been legal reasons to punish the employee, along with others that would have been illegal, such as retaliation or discrimination.

California courts have had to grapple with these kinds of cases, and determine how much of an employer’s decision to punish or harm an employee, must be based on an illegal reason, such as discrimination, for the employee to have a right to sue and recover damages.

Whistleblowing and Retaliation

The answer to that question largely depends on what kind of case the employee is bringing.

When it comes to whistleblowing or retaliation cases, the employee only needs to show that retaliation was a “contributing factor” to the employers’ decision to punish the employee.

If the employee can meet this burden, the case isn’t over—the law allows the employer to then show that it would have made the same decision anyway, even in the absence of the employee’s whistleblowing.

But the employer must show this by clear and convincing evidence—a higher standard or burden than the normal preponderance of the evidence standard, or 51% of the evidence, that normally applies in civil and employment cases.

This seems to put a high burden on an employer, and an easier burden on an aggrieved employee who feels retaliated against.

Discrimination Cases

The problem or confusion comes with discrimination cases, which are treated differently than whistleblowing and retaliation cases. In discrimination cases, California’s Fair Employment and Housing Act (FEHA) requires that an employee show that discriminatory reasons were a “substantial factor” in the employer’s negative or adverse employment action.

Put another way: in discrimination cases, the employee has to show that discrimination was part of an adverse decision made by the employer, more so than the employee would have to show that in a whistleblowing/retaliation case, where retaliation would only have to be a “contributing factor.”

In cases brought under the FEHA, if the employee meets his or her initial, higher burden, the employee can still win his or her case even if the employer shows that it would have made the same decision about the Plaintiff’s employment, in the absence of discrimination.

In other words: the initial burden in discrimination cases brought under the FEHA is higher and harder for an employee, but once the initial burden is proven, the case is equally, if not harder, for an employer to defend against than it would be in whistleblowing cases.

What defenses will be used against you in your discrimination or whistleblowing case? Contact the San Jose employment lawyers at the Costanzo Law Firm today.

Sources:

casetext.com/case/harris-v-santa-monica

johnstonmediation.com/articles/recorder.pdf