High Court Discrimination Ruling Improves Plaintiffs’ Chances

03/05/07

A new decision by the U.S. Supreme Court makes it a bit easier for workers to win discrimination cases against employers.

“Court Opens Door to Discrimination Claims,” screamed one headline. Is it really that bad for employers? “Unfortunately”, says G.Neil compliance attorney Ashley Kaplan, “yes. This decision will allow a significant number of cases to reach a jury that otherwise may have been dismissed by a judge at earlier stages of litigation.”

The Case
The discrimination charge was initially filed by Catharina Costa, a warehouse worker and heavy-equipment operator for Caesars Palace in Las Vegas. The only woman in this job for the company, she had numerous run-ins with management and coworkers that resulted in disciplinary action. Ultimately, she was fired for her part in a shoving incident with a coworker. The other employee, a man, was suspended for five days.

Costa filed a charge of sex discrimination in federal court. In the trial, Costa claimed she was singled out for “intense stalking” by a supervisor, that she received harsher discipline than men for the same conduct, that she was treated less favorably than men when it came to overtime, and that supervisors permitted men to utter sex-based slurs against her. The jury believed her and awarded back pay, compensatory damages, and punitive damages totaling $364,000.

Caesars appealed the decision. It believed the judge erred in giving the jury a “mixed motive” instruction. He told the jury that Costa should prevail if her gender was a motivating factor in the company’s treatment of her—even if the company also had legitimate reasons for its conduct. (Why mixed motive? Because the company may have had both legitimate and illegitimate motivations for disciplining and firing her.) Moreover, he told the jury, Costa was entitled to damages unless the company could prove that it would have treated her the same had gender played no role in its disciplinary decisions.

The appeals court, however, sided with the judge, whereupon Caesars appealed to the Supreme Court.

Evidence in ‘Mixed Motive’ Cases
At issue was what kind of evidence of discrimination is required in a mixed-motive case. Lawyers for Caesars Palace believed that Costa had to provide “direct evidence” of discrimination—something like a supervisor’s handwritten note saying he “wanted to run women out of his department.”

That’s a tall order, according to G.Neil’s Kaplan. “Direct evidence can be difficult to come by today, given that most managers have been trained to recognize the danger of making discriminatory comments at work.”

The Supremes: Unanimous
The Supreme Court ruled 9-0 that you don’t need direct evidence to prevail in a mixed-motive case. Good circumstantial evidence is enough to prove a charge. The court based its decision on the text of the 1991 amendment to Title VII of the Civil Rights Act, which makes no mention of the need for direct evidence.

Wrote Justice Clarence Thomas for his fellow justices, “To obtain [a mixed-motive] instruction. . . a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’”

What This Means for Employers
In effect, the ruling lowers the bar for employees who charge discrimination in mixed-motive cases. Kaplan: “The decision makes it easier for plaintiffs to reach a jury, which increases employers’ exposure to costly verdicts. Now that direct evidence is not required in a mixed-motive case, employers are likely to face more claims and higher damage awards.”

What You Should Do
“The decision reiterates the importance of assuring that all workplace decisions are based on legitimate business reasons and not on employees’ protected characteristics,” says Kaplan. Continue to train managers and monitor their decisions to make sure there is no actual or apparent bias. And because employers’ decisions are more likely to be tested before a jury, she concludes, “documentation and consistency are more important than ever.”

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