United States: Labor & Employment Legal Alert June 2003

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate against an employee on the basis of the employee’s race, color, religion, sex, or national origin. Traditionally, this meant that the fact-finder in a Title VII case was asked to decide whether the plaintiff had proved by a preponderance of the evidence that the employer took the adverse employment actions because of the employee’s race or sex, etc. – a simple all-or-nothing question for which the plaintiff bore the burden of proof. Then, in 1989, the Supreme Court considered a case where there was "direct" evidence of both a lawful and an unlawful motive [i.e., comments by partners in an accounting firm that a female should not be elevated to a partnership position because she was "too masculine" (illegal sexual stereotyping) and "not effective" (legal)]. The Supreme Court decided that, in that situation, the plaintiff had to prove that the unlawful criterion was a substantial factor in the employment decision and that, even when that was demonstrated, the employer could avoid a finding a liability by showing that it would have made the same decision even if it had not taken the plaintiff’s gender into account.

In 1991, Congress sought to counter this case and lower the threshold of proof for plaintiffs by amending Title VII to provide that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." (emphasis supplied). When the plaintiff demonstrated that an impermissible criterion was involved to any degree, the amendment also provided that, while the employer could avoid an award of damages by demonstrating that it would have taken the same action in the absence of the impermissible motivating factor, it could not absolve itself entirely of liability. This change in Title VII was bad for employers in two respects. First, if the plaintiff demonstrated that race or sex, etc., played any part in the decision, however slight, judgment would be entered against the employer, and the employer would, at a minimum, have to pay the plaintiff’s attorneys’ fees and costs. This was so even when the employer would have made the same decision in any event for legitimate, nondiscriminatory reasons. Second, the employer had the burden of convincing the jury that the illegal consideration did not prompt the result, instead of the plaintiff having to prove that the legitimate reason would not have been sufficient alone to cause the employment decision. Fortunately, until recently most (but not all) courts limited the harsher effects of this statutory change by requiring that plaintiffs present "direct" evidence of a discriminatory motive before this "mixed motive" statutory provision would come into play. On June 9, 2003, however, the U.S. Supreme Court in Desert Palace, Inc. d/b/a Caesar’s Palace Hotel & Casino v. Costa rendered a ruling that will make it substantially easier for plaintiffs to establish employer liability in Title VII cases.

"Direct" evidence consists of statements, conduct, or other evidence that would permit a fact-finder to draw a conclusion about discriminatory motives without resorting to inferences, whereas "circumstantial" evidence requires a fact-finder to rely on surrounding facts and circumstances to infer a conclusion about whether discrimination occurred. For example, a supervisor’s statement that "we can’t have pregnant women performing this job" would provide direct evidence that the supervisor’s decision to terminate a pregnant employee was motivated, at least in part, by the employee’s sex, whereas terminating a pregnant employee for reasons that did not get a similarly situated male employee fired would provide "circumstantial" evidence that the plaintiff’s sex was a reason for the decision. Direct evidence is a higher evidentiary standard because it is much harder to come by, especially in the employment discrimination context, and as a consequence, the "mixed motive" statutory provisions were involved only infrequently in Title VII cases. ATLANTA AUGUSTA CHARLOTTE LONDON RALEIGH STOCKHOLM WASHINGTON WINSTON-SALEM

In its Desert Palace decision, the Supreme Court ruled that a plaintiff need not offer direct evidence to take advantage of the "mixed motive" statutory provisions, but may rely on circumstantial evidence to show that an unlawful factor partially motivated the employment decision. In Desert Palace, the plaintiff, the only female warehouse worker at Caesar’s Palace, was terminated for engaging in a physical altercation with a male co-worker, who received only a suspension. The plaintiff sued her employer for sex discrimination, and her claim proceeded to a jury trial. Although the physical altercation provided a lawful reason for her discharge, she presented evidence that she had been treated differently than her male counterparts, thereby attempting to establish by circumstantial evidence that her discharge was motivated by her sex. The judge instructed the jury on the "mixed motive" standard for Title VII liability, but did not tell the jury that the plaintiff needed direct evidence of an illegal motive to prove her case. The employer appealed the jury’s finding that the employer had violated Title VII, but both the Ninth Circuit and the Supreme Court agreed that Title VII does not require plaintiffs to present direct evidence of discrimination to take advantage of the "mixed motive" statutory provisions in Title VII.

By permitting a "mixed motive" showing to be made by circumstantial evidence, the Supreme Court has made it much easier for plaintiffs to win a Title VII case. In the future, the employer in virtually all cases can avoid an award of damages to the plaintiff by proving that it would have taken the same action even in the absence of the improper motivation, but it remains guilty of a Title VII violation, and thus liable for the plaintiff’s attorneys’ fees, if it does not also prove to the jury that the employee’s race or sex, etc. played absolutely no part in the employment decision. In a practical sense, employers will now have to prove their innocence rather than plaintiffs having to prove the employer’s guilt in all cases that get to a jury. The enhanced likelihood that plaintiffs will recover attorneys’ fees will make Title VII cases more attractive to attorneys representing claimants in employment discrimination cases, as claims that once looked worthless because of the lack of direct evidence of discrimination will now look profitable even in the face of strong evidence that there was a legitimate, nondiscriminatory reason that justified the employment action. The Desert Palace decision is therefore likely to lead to an increase in employment discrimination litigation.

The enhanced ease with which a plaintiff can now establish a Title VII violation means that managers and human resources personnel should be increasingly vigilant in analyzing termination decisions, refusals to promote, and other adverse employment actions. Even when there appears to be an "airtight" lawful reason for an adverse employment action, it is important to consider all surrounding circumstances and comparable situations to determine whether the affected employee might be able to demonstrate facts from which a jury could draw an inference that the employee’s race or sex, etc. played a part in the employment action. Careful analysis of adverse employment actions before they are implemented can help minimize an employer’s exposure in employment discrimination lawsuits that are now more likely to be filed as a result of this decision.

If you would like further information about the Desert Palace decision and how it may affect your operations or pending claims, please contact any of the following Kilpatrick Stockton labor and employment attorneys:

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