The trial court erred in granting an employer summary judgment on plaintiff’s claim for discriminatory termination due to the fact he was gay. Though the employer offered a non-pretextual non-discriminatory reason for plaintiff’s termination, plaintiff produced evidence—particularly discriminatory remarks by an upper-level supervisor who might have influenced the termination decision—sufficient to raise a triable issue of fact as to whether discrimination at least was a substantial factor in the termination decision, even if it was not a but-for cause of the termination. In mixed motive cases, an employer is not absolved of liability by showing it would have fired the employee anyway. Also, the same-actor inference (the inference that the same person who hired or promoted the plaintiff would not have discriminated against him in firing him) is just an inference, and not a particularly strong one at that.
California Court of Appeal, Second District, Division 7 (Perluss, P.J.); June 21, 2017; 2017 WL 2665191