Work Hard To The End – The Mixed Motive Defense

Being harassed and discriminated against at work and can’t find the motivation to still work hard, what do you do? 

Obviously, immediately consult with a competent employment lawyer, but in the meantime don’t give up and don’t give your employer an excuse by lowering the quality of your work.  Time after time, I’ve seen long term employees with good to stellar performance reviews year after year, but the last one was “needs improvement.”  What happened?

Many times the discriminating employer/supervisor began “papering the employee file” to justify their ultimate termination decision, suddenly becoming uniquely critical of the employee’s work.  Other times, the employee required time off due to the harassment and could no longer produce the quantity of work they had completed in the past.  And sometimes, the employee succumbed and decided to slack off because, well why put in the hours and the sacrifice to be treated like trash.  It is understandable to want to give up when being demeaned or harassed in the workplace, but do not lower yourself to their level.

Jurors And The Mixed Motive Defense

Jurors are people just like you, and some not like you.  They may be understanding of your feelings and the lack of motivation, but then again, they may not.  You will not know truly how they feel about your situation until you hear their verdict.  Don’t take that chance.  The defense lawyer is going to paint an image of you that your work performance, while good through the years, suffered recently and resulted in your separation of employment.  They will argue your poor work performance was the “real” reason for the decision to ultimately end your employment.

Some jurors believe that discrimination was eradicated during the era of black and white televisions.  For these jurors it is easier for them to believe that a solid long term employee suddenly became a bad one.  Some jurors will believe both parties, that there was some discrimination involved in the employment decision as well as the employee’s recent poor performance was an unrelated reason that motivated the employer’s decision to terminate.  This is called the “mixed motive” defense.

Harris v. The City of Santa Monica

The California Supreme Court held in Harris v. The City of Santa Monica, that in claims brought under the Fair Employment and Housing Act (the California law that prohibits discrimination, harassment, and retaliation based on specific protected categories), when a jury finds that unlawful discrimination was a substantial factor motivating the decision to separate employment, and when the employer proves it would have made the same decision regardless of the unlawful motivation, the Court cannot award lost income and related damages to the employee.  Think of this in baseball terms as the “tie goes to the runner” but the “runner” here is the employer.  The employer is safe.  It doesn’t seem fair given the economic disparity between the typical employer and employee, but it is the reality.

Focus On What You Can Control By Continuing To Work Hard

You have the power to keep doing your job to the best you can.  Why give the employer an excuse, or at the very least, an argument?  In most cases where the employer desires to terminate an employee, the employer will document good work performance as bad work performance.  In this situation, the experienced employment law attorney can demonstrate through employment records and other evidence that the employee’s work performance did not diminish, but that the employer’s expectations uniquely and dramatically changed to support their discriminatory conduct.  If you continue to demonstrate superior work ethics through the challenges your facing, the value of your case may increase due to being able to prove the employer is lying about the job performance.  Jurors in employment cases appreciate hard workers; they loathe liars and those that they perceive are trying to cheat or fool them or the system whether it is the employer or the employee.

Consider Using The Company’s Designated Channels To Get Help

The vast majority of employers in California have paid money to create a line of communication for grievances.  Use it if you can.  Will it help you?  Sometimes yes, and sometimes no.  Many jurors will look favorably on a plaintiff who used the proper channels to bring a complaint and gave the employer the opportunity to remedy the situation.   Likewise, many jurors will also look with disfavor on a company that ignored or even punished the employee after they used the proper channels seeking help.  Unscrupulous employers and supervisors, when faced with unlawful conduct by a supervisor or manager, will use an “unaware” human resources person to make the employment decision to terminate.  The way to combat this is to put the human resources department on notice of the harassment or discrimination one is facing.

You Still Need To Prove Your Claims

Following this course will not mean that you will win your lawsuit.  You must prove your claims that you were harassed or discriminated against unlawfully.  The point here is to never give your employer an excuse to justify their or their supervisor’s unlawful harassment/discrimination.

Use Common Sense

This is not intended to be legal advice, but rather this is a general common-sense approach to a difficult situation that employees experience.  It is not applicable in all situations and it may not be applicable in yours.  If you feel you are being treated unfairly in the workplace, contact me, or another competent employment law attorney for legal advice for your specific situation.

This article is made available by THE TIBOR LAW FIRM, A.P.C. for educational purposes only as well as to provide general information and a general understanding of legal issues, and not to provide specific legal advice.  By reading this and/or commenting, you understand that there is no attorney client relationship between you and THE TIBOR LAW FIRM, A.P.C.  The information contained herein should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.