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Lisa J. Banks is a senior associate at Washington’s Bernabei & Katz, which specializes in the representation of plaintiffs in employment law, civil rights and civil liberties matters. Debra S. Katz is a name partner at the firm. From a Supreme Court term marked by a breathtaking string of victories for advocates of liberal causes emerged a trio of employment decisions that strengthened the ability of employees to bring claims of discrimination against employers. Although overshadowed by the more highly publicized cases involving issues of affirmative action, gay rights and the death penalty, the court’s employment decisions this term are nevertheless striking in their divergence from past conservative trends in this area and in their affirmation of three decisions by the 9th U.S. Circuit Court of Appeals. In a decision that could have significant impact on future employment litigation, the court ruled in Desert Palace v. Costa, 123 S. Ct. 2148 (2003), that direct evidence of discrimination is not required for a plaintiff to obtain a mixed-motive jury instruction under Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discriminate against any individual “because of such individual’s race, color, religion, sex, or national origin.” The court first looked to its opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which it fashioned the mixed-motive analysis, holding that a plaintiff could establish liability under Title VII for discrimination when both legitimate and illegitimate reasons motivated an employment decision, but that an employer could invoke an affirmative defense, and avoid liability, if it could prove that it would have made the same decision absent the illegitimate reason. That court, was divided however, on the question of what circumstances would shift the burden of proof to the employer to prove the affirmative defense. Justice Sandra Day O’Connor’s concurrence concluded that the burden would shift to the employer only if the plaintiff produced direct evidence that an illegitimate reason was a factor in the employment decision. From this concurrence, an assumption evolved among many of the lower courts-including the 9th Circuit panel in Costa-that direct evidence of discrimination was necessary for a mixed-motive jury instruction. Sitting en banc, the 9th Circuit reversed the panel’s decision and rejected a direct-evidence requirement, adding to the split among the circuits. Plain language of the statute Justice Clarence Thomas, writing for a unanimous court, relied on the plain language of the Civil Rights Act of 1991-which modified the absolute affirmative defense to liability established in Price Waterhouse-in affirming the en banc decision. The 1991 act provides that a defendant can limit, rather than avoid, damages by “demonstrat[ing] that [it] would have taken the same action in the absence of the impermissible motivating factor.” The court determined that “Congress explicitly defined the term ‘demonstrates’ in the 1991 Act, leaving little doubt that no special evidentiary showing is required.” The court further noted that it had often acknowledged the “utility” of circumstantial evidence in discrimination cases and reiterated its view that, in many contexts, “[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” The magnitude of the court’s decision in Desert Palace remains to be seen. Certainly, in pursuing a mixed-motive analysis without the imposition of a direct-evidence requirement, plaintiffs will more readily be able to survive summary judgment and, ultimately, prove liability. In many respects, however, the opinion raises more questions than it answers. For example, a number of legal experts have posited that allowing circumstantial evidence to give rise to a mixed-motive instruction will effectively obliterate the distinction between the traditional McDonnell Douglas paradigm, in which the plaintiff ultimately carries the burden of persuasion if an employer comes forward with a legitimate explanation for an employment decision, and the mixed-motive analysis. Others believe it is more likely that courts will continue to review the evidence presented at trial to determine whether a case is of the single-motive pretext or mixed-motive variety before allowing a mixed-motive instruction. Further, as a practical matter, it is unclear whether, and how often, plaintiffs will request a mixed-motive instruction, as they may prefer to demonstrate that an employer was motivated by a single, impermissible factor when making an employment decision, thereby allowing for an award of monetary damages, which is unavailable when a defendant satisfies its affirmative defense under a mixed-motive instruction. Desert Palace also fails to answer whether a defendant, in an effort to restrict liability, can request such an instruction over a plaintiff’s objection. These questions, as well as the applicability of Desert Palace to the Age Discrimination in Employment Act and the anti-retaliation provision of Title VII, the terms of which do not contain a corollary to the 1991 act, will be left to the lower courts to flesh out. Employees scored another significant victory in Nevada Department of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003), in which the court ruled that state employees-which number approximately 5 million-may bring claims in federal court under the Family and Medical Leave Act of 1993 (FMLA), a statute that entitles eligible employees to take 12 work weeks of unpaid leave annually for any of several reasons, including the birth or adoption of a child or the need to care for an ill family member. Chief Justice William Rehnquist, writing for the 6-3 majority, affirmed the 9th Circuit’s ruling that claims by state employees under the act are not barred by the 11th Amendment. In reaching this result, the court reiterated that Congress may abrogate the states’ 11th Amendment immunity from suit in federal court if it makes its intention to abrogate clear and if it acts pursuant to a valid exercise of its power under � 5 of the 14th Amendment to the Constitution. Because the majority determined that, in enacting the FMLA, the intent of Congress to abrogate was clear and that Congress presented substantial evidence that states had historically relied on invalid and mutually reinforcing gender stereotypes in the employment context, and specifically in the administration of leave benefits, it held that Congress’ passage of this legislation was constitutionally justified. Rehnquist acknowledged that the court had reached an opposite conclusion in two previous age and disability discrimination cases. In those cases, he explained, the discrimination at issue did not trigger a heightened level of scrutiny and it was therefore harder for Congress to show, as it must, a widespread pattern of state constitutional violations. However, the court noted that gender discrimination, like race discrimination, triggers a higher level of scrutiny and it is easier for Congress to show a pattern of constitutional violations. Thus, unlike the previous age and disability cases, in which Congress failed to detail adequately a history of discrimination by the states, the FMLA properly emerged from Congress’ determination that “the denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive pre sumption that women are mothers first, and workers second” and the “parallel stereotypes presuming a lack of domestic responsibilities for men.” Id. at 1982. The court’s ruling in Hibbs constitutes a notable departure from its recent trend of shielding states from the reach of anti-discrimination statutes pursuant to the 11th Amendment. That Rehnquist authored this opinion seems at first blush to be remarkable; however, it is likely that, given the split among the justices, the chief justice wanted to ensure that a clear majority emerged and that the analysis followed his own preference for analyzing 11th Amendment issues based on an evidentiary review of the congressional record, rather than on a more categorical approach that would focus on a broad constitutional or societal problem. Nevertheless, Rehnquist’s evidentiary analysis failed to satisfy Justice Antonin Scalia, who dissented separately from justices Anthony Kennedy and Thomas to chastise the majority for failing to demand specific proof of Nevada’s history of discriminatory practices and for treating the 50 states “as some sort of collective entity which is guilty or innocent as a body.” Determining who is an employee In Clackamas Gastroenterology Associates v. Wells, 123 S. Ct. 1673 (2003), the court similarly paved the way for more employees to gain coverage under federal anti-discrimination statutes. A bookkeeper at a medical clinic alleged that she was terminated on the basis of her disability, in violation of the Americans With Disabilities Act. The district court determined that the clinic, which had 14 employees in addition to four physician- shareholders, did not have the requisite 15 employees to be subject to the act. The 9th Circuit reversed, rejecting the economic-realities approach adopted by some circuits and holding that a professional corporation could not be allowed to assert its corporate status to reap the tax and civil liability advantages and, at the same time, argue that it is like a partnership to avoid liability for unlawful discrimination. In resolving the split among the circuits on the definition of an “employee” in the various federal anti-discrimination statutes, Justice John Paul Stevens, writing for the 7-2 majority, looked to common law agency principles and to the court’s opinion in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), where it employed a common law test in answering the question of whether a salesman was an independent contractor or an employee covered by the Employee Retirement Income Security Act of 1974. Stevens rejected the argument of Gastroenterology Associates that the court should simply focus on whether the shareholder-director of a professional corporation is, in reality, a “partner” and therefore not an employee under the anti-discrimination statutes, explaining that there are partnerships that include hundreds of members, some of whom may well qualify as “employees” because control is concentrated in a small number of managing partners. Thus, simply labeling an employee as a “partner” does not allow an employer to evade the anti- discrimination statutes. The court held that the common law element of a “master’s control over its servant” is the “principal guidepost that should be followed” in answering the question of whether a shareholder-director is an employee. The court, reiterating its view in Darden that the answer to the question of whether an individual is an employee depends on “all the incidents of the relationship . . . with no one factor being decisive,” adopted the Equal Employment Opportunity Commission (EEOC)’s guidelines, which list six, nonexhaustive, common law factors to be considered: whether the organization can hire or fire the individual or set the rules of their work; whether and to what extent the organization supervises the individual’s work; whether the individual reports to a higher authority in the organization; whether, and to what extent, the individual influences the organization; whether the parties intended the individual to be an employee; and whether the individual shares in the organization’s profits, losses and liabilities. In her dissent, which was joined by Justice Stephen Breyer, Justice Ruth Bader Ginsburg agreed that partnership should not be the touchstone, but stressed that the court’s approach will allow coverage under the anti-discrimination statutes to “turn on variations in ownership structure unrelated to the magnitude of the company’s business or its capacity for complying with federal prescriptions,” contrary to the purpose for which the 15-employee limit was enacted originally. Although perhaps not as broad as Ginsburg would have liked, the holding of Clackamas nevertheless uncharacteristically defers to the EEOC and eschews a bright-line test for answering this question, a result that will undoubtedly inure to the benefit of employees by preventing employers from labeling individuals as partners, and thereby attempting to evade the strictures of the anti-discrimination statutes.

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