It now should be clear to employers in California that the litigation rules are different as to what must be presented in discrimination lawsuits to succeed. Notably, just last week, in Alamo v. Practice Management Information Corp., B230909 (2nd Dist., Div. 7, Sept. 5, 2013), the California Court of Appeal held that the former versions of jury instructions – CACI Nos. 2430, 2500, 2505, and 2507 – are invalid in light of the California Supreme Court’s decision earlier this year in Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), because a FEHA discrimination claimant now is required to show that the protected status was a “substantial motivating reason” for the adverse action, and not merely “a motivating reason,” as the earlier versions of the jury instructions stated. The Alamo court also held that the employer was prevented from asserting the mixed motive defense at trial, because its answer did not put the plaintiff on notice that the defense was at issue. As such, going forward, an employer always should plead at the outset of the case (assuming that there is some basis for such an assertion) that it had a legitimate non discriminatory reason for the adverse employment decision, and that it would have made the same decision even in the absence of any purported unlawful motive.