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When Donald Trump says, “You’re fired,” to a hapless underling on his television show, The Apprentice, the entire audience understands why. If only employment discrimination litigation were that simple. Efforts to pin down a coherent legal theory to resolve the cause of a firing or lost promotion has defied many circuit courts, and plaintiffs’ lawyers blame some courts’ burden-of-proof standards for raising the bar for victims of discrimination to prevail and for the increasing dismissal of suits that rightfully should go to jurors. The circuit courts of appeal can’t seem to settle on a framework for assessing the cause of allegedly disparate treatment of women and minorities. And trial judges still vary on the plaintiff’s burden in showing “direct evidence of discrimination,” such as avowals that the firm won’t hire women; and more nebulous indirect, or circumstantial, evidence of bias. “A lot of courts are struggling to come up with bright-line rules” to show whether the cause of a job loss was discriminatory, said Darold Killmer, a plaintiffs’ lawyer with Killmer, Lane & Newman in Denver. “They are making mistakes. They are adopting rules in an area where rules are not easily applied,” said Killmer, a former senior trial attorney for the Equal Employment Opportunity Commission. Plaintiffs’ lawyers also worry that trial judges have begun to elevate the burden of proof on plaintiffs and trim their dockets of employment trials by dismissing cases early, at the summary judgment stage, rather than let jurors decide factual disputes over causation. “Summary judgment should be used very sparingly, especially on causation questions,” said Killmer. “If there is a legitimate dispute, that should go to the jury. The problem is [that] it has become a docket-control issue that has allowed judges to shade the rules.” Attempt at clarification Congress tried to clarify the situation in 1991 amendments to Title VII of the Civil Rights Act of 1964, declaring that as long as race or sex bias was a “motivating factor” in firing or denying promotions, an employer could be held liable. But the legislation neglected to spell out how courts should weigh other forms of discrimination, covered in separate statutes, related to age or disability or complaints under the Family and Medical Leave Act. There is a four-way split among circuits over the meaning of “direct evidence” and a more subtle division over interpretation of cases arising from the 1991 amendments to Title VII, according to Martin Katz, an employment law professor at the University of Denver Sturm College of Law. Defense attorneys, by contrast, are relatively sanguine about the state of the law. “The plaintiff has to prove they were fired on an unlawful basis. If not, then the reason was a pretext. It isn’t rocket science,” said Jules Crystal of Bryan Cave’s Chicago office, who represents management in labor issues. The sort of dispute at issue might arise when a female employee alleges that she was fired because she is female, while the employer counters that the firing was because she was routinely late for work. In an oft-cited 1973 ruling, the U.S. Supreme Court set up a three-part framework for proving disparate treatment when the evidence is circumstantial. The case, McDonnell Douglas v. Green, 411 U.S. 792 (1973), was the first to deal with the problems of proving intent to discriminate in disparate treatment cases. The justices held that once a plaintiff establishes a prima facie case of discrimination-i.e., for being a woman-the burden shifts to the employer to show that its motivation was nondiscriminatory-chronic tardiness. The onus then switches back to the plaintiff, to prove that the tardiness claim was a pretext to cover the discrimination. Sixteen years after McDonnell Douglas, the high court stepped in again, this time to address cases in which an employee alleges mixed motives by the employer-i.e., that she was fired both because she was late and female. In a plurality ruling, Justice William J. Brennan Jr. wrote that an employer can be held liable even if the motives are mixed, and that the plaintiff does not have to untangle the legal from illegal motivation. The ruling seemed more plaintiff-friendly, because the employee could prevail by showing that an improper reason was a “motivating factor” for the firing. The entire burden then shifts to the employer, which must show that the same job decision would have resulted notwithstanding the discriminatory motive. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). ‘Direct evidence’ Justice Sandra Day O’Connor wrote a concurring opinion agreeing with Brennan’s basic concept but adding a new wrinkle: She wanted to hold plaintiffs to a more demanding standard, requiring them to show some “direct evidence” of improper motive before the burden shifts to the employer. This created a “cottage industry of litigation” over what O’Connor meant by “direct evidence,” Judge Margaret McKeown of the 9th U.S. Circuit Court of Appeals noted in a subsequent ruling on the point, and a veritable “quagmire that defies characterization.” Desert Palace Inc. v. Costa, 299 F.3d 838 (2002). In its amendments to Title VII, Congress appeared to attempt to repudiate O’Connor’s formulation. The new law said that a plaintiff could establish a violation on a preponderance of evidence, either direct or circumstantial, that race or sex was a motivating factor in the adverse job action. The employer’s defense would be that the personnel decision would have been the same regardless of any discriminatory factor. The defense wouldn’t eliminate liability; it simply would allow the employer to seek a reduction of damages. That settled it, as far as McKeown was concerned. In Desert Palace, she observed that the Title VII amendments imposed no special burden on plaintiffs and did not even mention direct evidence. “To the extent that courts are using ‘direct evidence’ as a veiled excuse to substitute their own judgment for that of the jury, we reject that approach,” McKeown wrote in that case. The Supreme Court affirmed the 9th Circuit’s ruling, Desert Palace Inc. v. Costa, 539 U.S. 90 (2003), but that has not ended the debate. Some circuit courts have embraced the “direct evidence” framework, with mixed results. The 5th and 10th circuits turned to the dictionary to derive a definition of “direct evidence” as material that proves a fact without inferences or presumptions. The 2d and 8th circuits hold a less stringent position, requiring plaintiffs to show some animus on the part of the employer underlying disparate treatment of the worker, meaning simple evidence of discrimination. The 3d, 4th and D.C. circuits adopted a more stringent “animus plus” standard. This requires a plaintiff to prove a particularly strong case-to show more than a mere inference of discrimination, as McKeown described the standard in her opinion. Complicating the mixed-motive cases, “there is a group of courts that say the plaintiff must disprove all the reasons” given for a disciplinary action, Katz said. “The law is pretty clear in the 1991 act that if there is one discriminatory reason and 28 nondiscriminatory reasons, you are still liable.” The employer might not have to pay full damages, however. “The bottom line in every discrimination case is whether the employer’s reason was good enough to fire someone,” said Dan Friesen, a partner with the Denver litigation boutique Hale Friesen who represents companies in employment disputes. But as a practical matter, “if a company gives eight reasons for firing someone and the plaintiff can disprove one or two, then the inference is the company is lying about the others.” Tom Walsh, an employment defense attorney in Bryan Cave’s St. Louis office who argued McDonnell Douglas before the Supreme Court, said that the 8th Circuit is “pretty demanding that evidence of pretext must be more than speculation or a scintilla to avoid summary judgment. That’s a correct reading of McDonnell Douglas.” He continued: “There are some judges who feel [that] any suggestion of possible improper motive is proper for a jury to hear the case. I don’t think that’s what the Supreme Court intended. If so, the federal courts would be overwhelmed by trials on employment discrimination.” In endorsing McKeown’s position in Desert Palace, the justices agreed that under the 1991 amendments, plaintiffs were not obliged to meet any “direct evidence” requirement. Open question But they left open the question of whether and how to apply motivating-factor tests to age discrimination, Americans With Disabilities Act and Family and Medical Leave Act cases, which weren’t addressed in the 1991 amendments, according to Katz. “A number of circuits continue to require use of McDonnell Douglas,” Katz said, while other courts have suggested that the standard is dead. Katz believes application of McDonnell Douglas is a voluntary option for plaintiffs as a way to shown causation. “My message to courts is [to] never force anyone to use McDonnell Douglas,” he said. “And related to that, never force plaintiffs to introduce evidence of dishonesty [by employers]. They don’t need to show dishonesty to win.” The message to critics of McDonnell Douglas, he said, is that “it works better than you think it does, if you keep in mind it is just one of many ways to prove discrimination.” Despite the ongoing differences of interpretation among the circuits, the Supreme Court has shown little interest in stepping into the muddle any time soon, Katz said.

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