California Civil Jury Instructions (CACI) (2017)

4604. Affirmative Defense—Same Decision (Lab. Code, § 1102.6)

Download PDF
4604.Affirmative Defense—Same Decision (Lab. Code, § 1102.6)
If [name of plaintiff] proves that [his/her] [disclosure of information of/
refusal to participate in] an unlawful act was a contributing factor to
[his/her] [discharge/[other adverse employment action]], [name of
defendant] is not liable if [he/she/it] proves by clear and convincing
evidence that [he/she/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
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.)
Sources and Authority
• Same-Decision Affirmative Defense. Labor Code section 1102.6.
“[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 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,
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L,
Employment Torts And Related Claims: Other Statutory Claims, ¶ 5:894 et seq.
(The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.12 (Matthew Bender)