U.S. Supreme Court Makes Job Bias Easier to Prove
June 19, 2003
Dealing a major blow to employers, the U.S. Supreme Court recently made it easier for employees to prove employment discrimination. No longer must an employee be able to show "direct evidence" of discrimination but can now prevail with only circumstantial evidence. Desert Palace, Inc. dba Caesars Palace Hotel & Casino v. Costa, 2003 DJDAR 6128 (U.S. June 9, 2003). This ruling is likely to increase the number of discrimination lawsuits filed against employers and leaves many plaintiffs lawyers salivating at the reduced burden for plaintiffs.
The issue before the Supreme Court was the proper burden of proof under Title VII of the Civil Rights Act in a "mixed-motive" case, i.e., where both legitimate and illegitimate reasons are alleged to have contributed to the employment decision. The Court ruled that even where employers have a legitimate reason for an employment decision, such as good cause for termination, an employee can still take their discrimination case to the jury as long as they can show some circumstantial evidence that illegal bias was "a motivating factor" in the decision.
The case involved Catharina Costa, the only female warehouse worker and heavy-equipment operator at Caesar’s Palace Hotel in Las Vegas. She had a history of disciplinary problems, was involved in multiple disputes with management and her coworkers, had received a series of disciplinary sanctions and was eventually terminated following a physical fight with another worker. Ms. Costa filed lawsuit asserting claims of sex discrimination under Title VII of the Civil Rights Act. At trial, Ms. Costa presented evidence that she was singled out by her supervisor, received harsher discipline then men for the same conduct, was treated less favorably than men in the assignment of overtime and supervisors tolerated sex-based slurs against her.
This case is a classic example of a "mixed-motive" case. Since 1964, Title VII has made it an "unlawful employment practice for an employer . . . to discriminate against any individual . . . , because of such individual’s race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). In 1989, the Supreme Court considered whether an employment decision is made "because of" sex where legitimate and illegitimate reasons motivated that decision. In that prior decision, the Court concluded that under Title VII, an employer could "avoid a finding of liability . . . by proving that it would have made the same decision even if it had not allowed gender to play such a role." At that time, however, the Court was divided over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense. In that 1989 decision, Justice O’Connor wrote a concurring opinion stating that the burden on the issue of causation would shift to the employer only where a plaintiff could show by "direct evidence" that an illegitimate criterion was a "substantial factor" in the decision. Over the last decade, judges have relied on Justice O’Connor’s "direct evidence" language in throwing out allegations of job bias before the case even got to the jury where the employee did not have "direct evidence" of discrimination.
When Congress passed the Civil Rights Act of 1991 (1991 Act) it added a number of statutory provisions, some of which addressed the burden of proof in mixed-motive cases. The Supreme Court’s decision in Costa is the first ruling by the Supreme Court on the meaning and application of the 1991 Act. Courts throughout the United States were split as to whether the 1991 Act eviscerated the "direct evidence" standard that had been adopted by many courts. Justice Thomas, writing for a unanimous Court, stated that if Congress had intended the 1991 Act to adopt to "direct evidence" standard, it would have said so. Justice Thomas concluded that Congress’ "failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances."
A plaintiff is now entitled to have his or her case decided by the jury by presenting 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." Because direct evidence of discrimination is no longer required in mixed-motive cases, a plaintiff can meet his or her burden through the use of direct or circumstantial evidence. Although the employer can still avail itself of a limited affirmative defense by demonstrating that it still would have made the decision absent the impermissible motivating factor, that burden now shifts to the employer at a much lower threshold.
The effect of this ruling is to make it easier for plaintiffs to avoid summary judgment and have their case heard by the jury. A plaintiff can now reach the jury without a "smoking gun," as many courts had previously required.
