CACI No. 4604. Affirmative Defense - Same Decision (Lab. Code, § 1102.6)
Judicial Council of California Civil Jury Instructions (2023 edition)
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4604.Affirmative Defense - Same Decision (Lab. Code, § 1102.6)
If [name of plaintiff] proves that [his/her/nonbinary pronoun] [disclosure of
information of/refusal to participate in] an unlawful act was a
contributing factor to [his/her/nonbinary pronoun] [discharge/[other
adverse employment action]], [name of defendant] is not liable if [he/she/
nonbinary pronoun/it] proves by clear and convincing evidence that [he/
she/nonbinary pronoun/it] would have [discharged/[other adverse
employment action]] [name of plaintiff] anyway at that time for legitimate,
independent reasons.
New December 2013; Renumbered from CACI No. 2731 and Revised June 2015,
December 2022
Directions for Use
Give this instruction in a so-called mixed-motive case under the whistleblower
protection statute of the Labor Code. (See Lab. Code, § 1102.5; CACI No. 4603,
Whistleblower Protection - Essential Factual Elements.) A mixed-motive case is one
in which there is evidence of both a retaliatory and a legitimate reason for the
adverse action. Even if the jury finds that the retaliatory reason was a contributing
factor, the employer may avoid liability if it can prove by clear and convincing
evidence that it would have made the same decision anyway for a legitimate reason.
(Lab. Code, § 1102.6.) For an instruction on the clear and convincing standard of
proof, see CACI No. 201, Highly Probable - Clear and Convincing Proof.
Sources and Authority
• Same-Decision Affirmative Defense. Labor Code section 1102.6.
• “[W]e now clarify that section 1102.6, and not McDonnell Douglas, supplies the
applicable framework for litigating and adjudicating section 1102.5
whistleblower claims.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12
Cal.5th 703, 712 [289 Cal.Rptr.3d 572, 503 P.3d 659].)
• “By its terms, section 1102.6 describes the applicable substantive standards and
burdens of proof for both parties in a section 1102.5 retaliation case: First, it
must be ‘demonstrated by a preponderance of the evidence’ that the employee’s
protected whistleblowing was a ‘contributing factor’ to an adverse employment
action. Then, once the employee has made that necessary threshold showing, the
employer bears ‘the burden of proof to demonstrate by clear and convincing
evidence’ that the alleged adverse employment action would have occurred ‘for
legitimate, independent reasons’ even if the employee had not engaged in
protected whistleblowing activities.” (Lawson, supra, 12 Cal.5th at p. 712,
internal citation omitted.)
• “[Plaintiff] points to Labor Code section 1102.6, which requires the employer to
prove a same-decision defense by clear and convincing evidence when a plaintiff
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has proven by a preponderance of the evidence that the employer’s violation of
the whistleblower statute was a ‘contributing factor’ to the contested employment
decision. Yet the inclusion of the clear and convincing evidence language in one
statute does not suggest that the Legislature intended the same standard to apply
to other statutes implicating the same-decision defense.” (Harris v. City of Santa
Monica (2013) 56 Cal. 4th 203, 239 [152 Cal.Rptr.3d 392, 294 P.3d 49]; internal
citation omitted.)
• “[W]hen we refer to a same-decision showing, we mean proof that the employer,
in the absence of any discrimination, would have made the same decision at the
time it made its actual decision.” (Harris, supra, 56 Cal.4th at p. 224, original
italics.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 373, 374
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-A,
Retaliation Under Title VII and FEHA, ¶ 5:1538 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.60 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.12 (Matthew Bender)
CACI No. 4604 WHISTLEBLOWER PROTECTION
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© Judicial Council of California.
