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staff reporter Washington-A U.S. Supreme Court ruling last week in a “mixed-motive” job bias case is one of two in the past three years that ease the burden of workers claiming illegal discrimination on the job. Together, the rulings have turned back lower courts’ efforts to build higher evidentiary hurdles to proving an employer’s intent to discriminate. In an age discrimination case in 2000, the high court held that a plaintiff’s prima facie case, combined with a showing that an employer’s stated reason for an adverse job action was false, allows a trial court to conclude that the employer unlawfully discriminated. The justices refused to require the “smoking gun” of direct evidence of the employer’s intent. Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133. In last week’s sex discrimination case, the justices unanimously held that direct evidence is not required for a plaintiff to prove discrimination was a motivating factor in a “mixed-motive” case, in which an employer had both legitimate and illegitimate reasons for making a job decision. Desert Palace Inc. v. Costa, No. 02-679. The Desert Palace ruling is highly significant, according to plaintiffs’ and defense lawyers, because federal appeals courts have been holding claimants in mixed-motive cases to the nearly impossible standard of direct evidence. (An example of direct evidence would be a memo declaring that someone’s race or sex was the cause of a firing.) “It has the potential to be quite sweeping,” Michael C. Subit of Seattle’s Frank, Free, Subit & Thomas said of the case. He filed an amicus brief for the Lawyers Committee for Civil Rights Under Law supporting Catharina Costa, the original plaintiff. “All you need to do as a plaintiff is establish as a genuine issue that discrimination was a motivating factor,” he said. “You don’t have to show it was the determining factor. That will make it harder for employers to obtain summary judgment, which I think is proper.” Defense counsel generally agreed with Subit on the decision’s likely impact. “As a practical matter, it’s going to make it easier for plaintiffs to win cases and put more pressure on employers to settle,” said Ann Reesman of Washington’s McGuiness, Norris & Williams, who filed an amicus brief for the Equal Employment Advisory Council and the U.S. Chamber of Commerce in support of Desert Palace. Costa, represented by Robert N. Peccole Sr. of Las Vegas’ Peccole & Peccole, worked at what was then Caesar’s Palace Hotel & Casino from 1987 to 1994. She was the only female warehouse worker and heavy-equipment operator. Problems with co-workers and supervisors led to disciplinary actions. After an altercation with a co-worker, she was fired. She filed a sex discrimination suit under Title VII of the Civil Rights Act of 1964. Costa claimed, among other things, that she was disciplined more harshly than men for the same conduct. A jury awarded her $364,000 in back pay and damages. Title VII requires a plaintiff to prove that she suffered an adverse employment action because of her sex. The “because of” element forces a plaintiff to prove motive, a difficult task, say plaintiffs’ lawyers, particularly because discrimination is often more subtle than it once was. The Supreme Court addressed the motive problem in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). It made it rather easy for a plaintiff to present a prima facie case of discrimination but kept the burden of persuasion-the ultimate burden of proof-on the plaintiff. After an employer offers a legitimate reason for an action, the plaintiff has to prove by a preponderance of the evidence that the reason was a pretext, or false. That type of case is generally known as the single-motive or pretext case. “The reason we have plaintiffs making such a very simple, prima facie case is that the plaintiff almost always never has the real reason for the action,” said Professor Charles Craver of George Washington University Law School. “You suspect you were treated differently. Employers almost always will have a reason.” Once a reason is offered, the plaintiff can prove by direct or circumstantial evidence that the reason is a pretext for discrimination. If she proves it, Craver said, “she has won the case.” Mixed-motive cases In 1989 the court set out a second way of reaching illegal motive. In situations where the employer had both illegal and legal reasons for taking an adverse job action, the court said, the plaintiff must prove, again by a preponderance of the evidence, that discrimination was one motivating factor. The plaintiff must show “direct and substantial evidence” of discriminatory intent. Once he or she proves that, the burden shifts to the employer to prove it would have taken the same action even if discrimination had not been a factor. Price Waterhouse v. Hopkins, 490 U.S. 228. Under Price Waterhouse, if the employer convinced the fact-finder, it avoided all liability. The 1991 Civil Rights Act changed the employer’s liability in those so-called mixed-motive cases. Today, once a plaintiff proves that discrimination was a motivating factor, a violation of Title VII has occurred and the employer is liable. The employer can limit the remedies only by proving it would have made the same decision regardless of the illegal factor. If that happens, no damages are awarded, but the plaintiff can receive attorney fees and costs. “Congress has said if you’re motivated by one illegal thing and several legal things, you’re not off the hook,” said Debra Katz of Washington’s Bernabei & Katz. In the Desert Palace case, the casino’s high court counsel, Mark J. Ricciardi of Las Vegas’ Fisher & Phillips, argued that the 1991 act did not change Price Waterhouse‘s requirement for direct evidence in a mixed-motive case. Writing for the court, Justice Clarence Thomas disagreed, saying, “On its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence.” A plaintiff, he wrote, need only present “sufficient evidence” that sex was a factor in the decision. “I think now the lower courts are going to have to grapple with the definition of what is or isn’t a mixed-motive case,” said Ricciardi. “The Costa court gave us no real guidance on that.” He predicted that plaintiffs with “very little evidence” of discrimination will latch onto the mixed-motive theory in an effort to shift the burden of persuasion to employers. Shifting the burden to employers should only be done when there is direct evidence of discrimination, Reesman said. “Employers typically defend discrimination as a single-motive case,” she said, adding that the decision will turn every discrimination case into a mixed-motive case. Katz disagreed, saying, “If the evidence is, in fact, strong enough, you should be able to get to the jury and let the defendant show he would have made the same decision regardless of the illegal factor. Defendants hate the mixed-motive issue because they don’t want the jury to put the spotlight on them and have them prove by a preponderance of the evidence that they had a legitimate, nondiscriminatory reason. “This has been the law of D.C. since 1997,” she said. “You’ll find most of us litigate these cases as pretext cases. The court is the gatekeeper and will make the determination whether the evidence is substantial enough to get to a jury on a mixed-motive instruction. I don’t think there will be a watershed with all cases being litigated as mixed-motive.” Craver, a labor scholar, said the Desert Palace decision is also notable because of its rejection of not only the lower court trend of requiring direct evidence but its rejection of the Bush administration’s support of that trend. “What we’ve seen is a very conservative federal judiciary-the vast majority appointed during the Reagan and Bush presidencies,” he said. “In a fair percentage of these cases, they are granting summary judgment and trying to keep the cases from juries. We have a judiciary that seems to feel discrimination is not as important as it was 30 years ago.” While the overt discrimination of the 1960s is “pretty much gone,” Craver said, “we still see a significant amount of subtle but pernicious discrimination. Reeves and Costa are two critical decisions in allowing circumstantial evidence. They recognize in most of these cases plaintiffs just don’t have direct evidence.” Coyle’s e-mail address is [email protected].

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