A judge has overturned an $8.5 million verdict awarded to a former “Price is Right" model, Brandi Cochran, in a pregnancy discrimination case and ruled a new trial is necessary based on the Supreme Court’s recent decision in _ Harris v. City of Santa Monica. The Judge determined that he should have instructed the jury on the possibility “ mixed motive." Under _Harris, if the jury determines that there was a “mixed-motive" then the Plaintiff is not entitled to any damages. Her attorney, Carney Shegerian, agreed that Judge Brazile’s ruling was proper and he’s looking forward to trying the case again saying, “I think on re-trial I'll get triple or quadruple that."

Carney Sherigan is not worried about his case and he probably shouldn’t be because there wasn’t much evidence of poor performance. But, Harris is still proving problematic for many employees. Increasing the standard of proof from a “motivating factor" to a “substantial motivating factor" is not daunting. The real problem lies in Harris cutting off damages to employees if the employer can prove that it would have fired the employee anyway. Basically, the Court has said, “you were the victim of discrimination that substantially motivated your boss to fire you, but you weren’t the greatest employee so you we’re not going to give you anything for the pain and suffering you have endured as a result of the discrimination." Harris provides for attorneys’ fees and costs and injunctive relief in mixed motive situations, but employers are now free to discriminate against problem employees without fear of paying for causing emotional distress or having to pay punitive damages.

Employees must document and complain of real or perceived discrimination early on, before employers can write them up in order to help establish that the write-ups are pre-textual. Unfortunately, many employees will fail to build a discrimination case, and will be subjected to harassment and discrimination and will not be compensated for the emotional distress they have endured. Employees should work with a discrimination attorney as soon as they suspect discrimination, before they need a wrongful termination lawyer.

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hourissues. He counsels, and represents employees, and writes a California Employment Law Blog.