Thrown Under the Bus: Victims of Workplace Discrimination after Harris

Abstract

In Harris v. Santa Monica, the California Supreme Court (1) raised the standard of causation that plaintiffs alleging any form of employment discrimination must meet, (2) established the same-decision defense for mixed-motive cases, which allows employers to significantly mitigate exposure to damages if it can show it would have made the same decision absent discrimination, and (3) opened the door to use of the stray remarks doctrine. The Court's decision is grounded on assumptions that discrimination is rare and that employees unfairly benefit from anti-discrimination laws. However, racial discrimination continues to pervade the workplace and employees alleging employment discrimination fare worse in court than plaintiffs in other employment cases. The decision also makes two incorrect assumptions about the nature of discrimination: (1) an employer’s perception of the employee’s performance is not impacted by the employer’s discrimination, and (2) the employee’s performance itself was not influenced by the employer’s discrimination. Yet, research suggests that an employer's discrimination clouds his or her perception of the employee's performance and may influence the employee's performance. And the Court's apparent approval of the stray remarks doctrine fails to recognize that discriminatory statements in the past may evince stereotypes or biases that will influence decision-making in the future. In response to Harris, the California legislature should amend the Fair Employment and Housing Act to restore the motivating factor standard of causation, reject the stray remarks doctrine, and reject the same-decision defense.

Keywords: unconscious discrimination, implicit bias, stray remarks doctrine, microaggressions, cognitive bias, stereotypes, perceptual segregation