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Proving employment discrimination just got a little easier. Plaintiffs’ employment lawyers at various New York City firms were thrilled by the unanimous decision by the U.S. Supreme Court in Reeves v. Sanderson Plumbing Products Inc., No. 99-536 earlier this month. “ Reeves is a very positive case for plaintiffs,” said Anne C. Vladeck, a partner at Vladeck Waldman Elias & Engelhard PC. “It will be more difficult for defendants to get summary judgment and for jury verdicts to get thrown out,” she added. Management-side lawyers were more circumspect but most reluctantly agreed that the ruling lowered the ante for plaintiffs in holding that an employer may be found liable where the employee establishes both a “prima facie case” of discrimination and “pretext” — a showing that the employer’s stated explanation was not the real reason for the employment action taken. ‘PRETEXT PLUS’ The Court’s ruling rejected an interpretation by the U.S. Court of Appeals for the Second Circuit and four other circuits of an earlier Supreme Court decision. The “pretext plus” doctrine, as set forth in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997), required plaintiffs to provide sufficient evidence for a jury to find not only that the employer’s reason was false but also that the real reason was discrimination. The Supreme Court’s decision arose from a suit by Roger Reeves, a production line supervisor and 40-year employee at a plumbing supply manufacturer in Mississippi, who sued his employer for age discrimination after he was fired and replaced by a younger man. Mr. Reeves’ boss, who was married to the president of the company, had made comments to the effect that he was old enough to have come over on the Mayflower, although, not surprisingly, the comments were not made in the context of the dismissal. The employer argued that Mr. Reeves was fired for failure to keep accurate records, but the jury rejected this defense and awarded Mr. Reeves damages. The Fifth Circuit reversed, holding that the plaintiff had not introduced direct evidence of discrimination, the “plus” element of the “pretext plus” doctrine. In reversing, the Supreme Court found that the Fifth Circuit had “misconceived” the evidentiary burden on plaintiffs. Writing for the Court, Justice Sandra Day O’Connor said, “It is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Plaintiffs’ lawyers read the decision to overturn, or at the very least, “totally eviscerate” Fisher, in the words of Janice Goodman, of Goodman & Zuchlewski. “It takes us back to pre- Fisher days,” Ms. Goodman said. “No longer will plaintiffs have to show direct evidence of discriminatory intent in addition to falsity.” “I think the Reeves case vindicates Dr. Fisher,” said Eleanor Jackson Piel, who represented Cynthia J. Fisher, the plaintiff in that case. Ms. Fisher, a Vassar College biology professor, had argued unsuccessfully that her status as a married woman had prevented her from gaining tenure. “Even though we cannot take advantage of Reeves now, I’m glad it’s there,” she added. Meanwhile, management lawyers were cautious. While admitting that Reeves implicitly overruled Fisher, they cited several reasons for thinking that its impact in this circuit was limited. The Court’s decision “may make it harder to get summary judgment.” said Elise M. Bloom, a partner at New York’s Jackson Lewis Schnitzler & Krupman. “But it was hard to get summary judgment in the Second Circuit anyway.” Nevertheless, some lawyers expected that Reeves would lessen the number of summary judgment motions by defendants, and result in more frequent, earlier and less pricey settlements. “Maybe employers will be less secure in the feeling they are going to get summary judgment and maybe they will be more willing to talk settlement,” said Alfred G. Feliu, a management lawyer at Vandenberg & Feliu LLP. Plaintiffs’ employment lawyer, Jeffrey M. Bernbach, put it more strongly. In Fisher‘s wake, a summary judgment motion arguing that there was no direct evidence of discrimination was “virtually automatic,” he said, adding that “no case settled until the defendant’s summary judgment motion was decided.” Mr. Bernbach predicted that, post- Reeves, more cases would settle early in the course of the litigation. And since the legal fees incurred in discovery and the summary judgment motion would be avoided, settlements would be cheaper. Management lawyers also argued that Reeves would simply cause courts to shift their focus on other aspects of the plaintiff’s case. BURDEN OF PROOF In employment discrimination cases, the burden of proof shifts between the employee and the employer. First, the employee must establish a prima facie case. As set forth in the 1973 U.S. Supreme Court case, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the test requires plaintiffs to show that they are members of a protected class; they are qualified for the position; and they suffered an adverse employment action. Additionally, in the Second Circuit, plaintiffs must satisfy a fourth prong that there are circumstances giving rise to an inference of discrimination. Once the prima facie showing is made, the burden then shifts to the employer to give a nondiscriminatory reason for the adverse employment decision. Then the burden shifts back to the plaintiff to establish the reason given was false or pretextual. The judge or the jury may then weigh all the evidence in concluding whether there is discrimination. Where in the past many courts assumed its validity, “courts may begin paying more attention” to the prima facie case,” Mr. Feliu said. He cited an April 2000 decision by Judge Robert Sweet, Ricks v. Conde Nast Publications, Inc., 92 F. Supp. 2d 338 (S.D.N.Y. 2000), as an example. In that case, the court found that the plaintiff was not qualified for the position even though she had been hired to fill it. Some management lawyers also argued that the circumstances in which Reeves would apply were relatively few. “The number of cases where you can demonstrate pretext but there is no evidence of discrimination is very small,” said Allen I. Fagin, co-chair of the labor and employment law department at Proskauer Rose LLP. As a result, he said, “the practical consequences are extremely limited.” Others disagreed: “A lot of employers become very euphemistic when they terminate someone, in order to spare their feelings,” said Gary D. Friedman, a partner at Mayer Brown & Platt. “After Reeves, there may be a penalty in sugarcoating a termination decision,” he added. Management lawyers emphasized the importance of prevention in light of Reeves. All employment decisions should be “well documented,” Ms. Bloom said. Managers also need to be aware that “if in fact an adverse employment decision is based on performance, but you want to spare that person’s feelings, you may be held accountable for that misstatement,” Mr. Friedman said. Lawyers on both sides agreed that Reeves provided sorely-needed clarification. In the wake of Fisher, a 6-5 in banc decision with a bewildering array of opinions, this area of the law was characterized by more discord than consensus. The Fisher case “is the most fractured decision I have ever seen,” Mr. Bernbach said. “It created tremendous confusion in the Second Circuit.” As a result, judges largely were left to their own interpretations. “The case permitted courts to emphasize or de-emphasize certain facts as they wished,” said Mr. Feliu. Joel E. Cohen, a partner at McDermott Will & Emery who represents management, agreed. “The decisions are all over the place,” he said. The situation was similar at the circuit court level. “A lot depends on what panel you get,” Ms. Bloom said. “You will see judges going one way on one case and another way on another,” Mr. Cohen said. But the jury was out on whether Reeves would bring order to the Second Circuit. While lawyers expected that many judges will embrace Reeves, as to others on the bench, they took the view of Ms. Vladeck. “Some judges will do what they want to do no matter what,” she said.

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