What Happens When You’re Fired for Both a Legal–and an Illegal–Reason?

In life, rarely do people make decisions based on one factor alone. The same is true, with decisions to fire or otherwise take adverse employment actions against employees.

Legal and Non-Legal Reasons

There are often times when an employee is a member of a protected class and have experienced some form of illegal discrimination or harassment. Perhaps sexual harassment, or age, gender, pregnancy, disability or nationality discrimination, or maybe even illegal retaliation at work. The employee is fired or otherwise disciplined and complains of discrimination or harassment.

In response, the employer says that the employee would have been fired anyway because the employee broke company rules or was a “bad employee” or provides some other legitimate, otherwise legal reason why the employee was fired.

But the truth is that both employer and employee may be correct: the employee may have been a victim of harassment or discrimination or retaliation, but at the same time, that employee may have done or not done something that would legitimately warrant being fired or laid off or demoted.

Mixed Motive Cases

So, who wins these kinds of cases? Can an employer get away with harassment or discrimination, if there is also something “legitimate” to justify the adverse employment action?

The answer is yes, sometimes

Once it is shown that the employer discriminated or harassed, or that it made some employment decision that would violate the law, and thus entitle the employee to sue, the employer can come back and show the jury that there was a legitimate nondiscriminatory reason for the action taken against the employee–that is, that even in the absence of any discrimination, the employer would have made and come to, the exact same employment decision anyway.

To be actionable discrimination or harassment, the jury must find that the discrimination or retaliation–whatever the illegal reason may be–was a “substantial factor” in the adverse employment decision.

Although random insulting words or comments may be evidence of discrimination, that alone, is not a “substantial factor”; there must be other, overt and obvious signs of discrimination for a jury to find that it is the illegal discrimination or harassment, and not the legal reason, for the employee’s termination.

What if the Employer is Right?

If the court finds that there was discrimination by the employer, but that the employer would have made the same decision anyway–that is, that the employer would have fired or demoted or punished the employee, for a legitimate legal reason, even in the absence of the discrimination–the employee cannot recover any damages in the case.

But the employee can recover his or her attorneys fees, and in some cases, an injunction against the employer. That means that in mixed motive cases, and even where an employee may have done something at work that might have warranted an adverse employment action, there still can be a legal remedy to help that employee receive some measure of justice.

Harassed at work? Contact the San Jose employment attorneys at the Costanzo Law Firm today.

Source:

law.justia.com/cases/california/supreme-court/2013/s181004.html