Is the News Really All That Bad in the Supreme Court's Decision Concerning Mixed-Motive Evidence in Employment Cases?
Circumstantial evidence alone is enough to win. Recently the United States Supreme Court so held, finding that plaintiff employees in “mixed-motive” employment discrimination cases do not have to present “direct evidence.” Instead, the Court ruled that employees can prove their case through inferences drawn from the totality of the employer’s conduct (i.e. circumstantial evidence). Desert Palace, Inc. v. Catharina Costa, 123 S. Ct. 2148 (U.S.)
“Mixed-motive” cases are where, for example, the employee says discipline, demotion or termination occurred because of discrimination and the employer says it was because of poor performance. “Direct evidence” consists of first hand witness testimony, documents or conduct by the employer which prove specific discriminatory hostility (animus). Following is a review of Desert Palace, commentary and practice tips for future application.
Plaintiff Catharina Costa was the only female warehouse worker and heavy equipment operator at Caesar’s Palace Hotel & Casino in Las Vegas. She also was the only female in her local Teamster’s Bargaining Unit. She had had a number of problems with management and co-workers that led to escalating disciplinary actions against her including informal corrections, denial of privileges, and suspension. Ultimately, she was terminated as a result of an altercation with a male co-worker on an elevator. The male worker was given a 5-day suspension; he had a clean disciplinary record before the incident. Thereafter, Costa filed a federal complaint for sex discrimination and sexual harassment. The district court dismissed the sexual harassment claim, but allowed the sex discrimination claim to go to the jury.
At trial, Costa presented evidence that (1) she was singled out for “intense ‘stalking’” by one of her supervisors; (2) she received harsher discipline than men for the same conduct; (3) she was treated less favorably than men in the assignment of overtime; and (4) supervisors repeatedly “stack[ed]” her disciplinary record and “frequently used or tolerated” sex-based slurs against her. Costa’s employer contended that she was no stranger to poor performance and had been disciplined on a number of previous occasions (presenting a classic mixed-motive case).
The district court instructed the jury that if it found discrimination by a preponderance of the evidence, damages could be awarded unless the employer has also shown, by a preponderance of evidence, that it would have terminated Costa anyway for non-discriminatory reasons. The employer objected to the instruction because the plaintiff allegedly had not submitted any “direct evidence” of discrimination to the jury. A full panel of the Ninth Circuit Court of Appeals en banc upheld the challenged jury instruction, and the employer appealed to the U.S. Supreme Court.
In a relatively short, but perhaps far reaching opinion, the United States Supreme Court noted that this was its first opportunity to interpret the 1991 amendments to the Civil Rights Act of 1964 on the issue of what evidence a plaintiff would have to present in order to be successful on a mixed-motive discrimination claim. Previously, there had been a split among the Federal Circuit courts. The First, Fourth, Eighth and Eleventh Circuit had held that a plaintiff in a mixed-motive discrimination claim must present “direct evidence” of discrimination. As stated, the Ninth Circuit had concluded that circumstantial evidence was sufficient.
The Supreme Court’s analysis began with the 1991 Amendments to the Civil Rights Act. The 1991 Amendments set the standard for proof in “mixed-motive” cases. The Court observed that the 1991 Amendments simply state that the plaintiff must “demonstrat[e]” discrimination. They do not indicate that the plaintiff has to do so by using direct evidence. The Court reasoned that if Congress had wanted to raise the bar on the level of evidence necessary, it would have done so specifically. The Court also pointed to other statutes where Congress specifically had spelled out that the standard of proof was higher. Thus, absent unequivocal instruction from Congress, the Court concluded that a plaintiff in a mixed-motive discrimination claim can successfully prove his or her case through the use of circumstantial evidence.
Some commentators have stated that the Court’s decision will make it easier for plaintiffs to win by lowering the bar on the level of evidence necessary. They also believe that plaintiffs will be more inclined to file mixed-motive cases. However, General Counsel for the Washington based Equal Employment Opportunity Advisory Council has stated that while perhaps it may be easier for an employee to prove their claim of discrimination, jurors will have an opportunity to “split the baby,” i.e. find discrimination for the plaintiff, but then not award damages against the employer where the employer shows that it would have terminated the employee anyway. That observation stays true to the statutory language. Under the 1991 Amendments, in a mixed-motive case, if an employee establishes that he or she has suffered an adverse employment action due to discrimination, the employer can raise as an affirmative defense that the employee would have been terminated anyway because of non-discriminatory reasons, such as bad performance or discipline problems. If the employer successfully establishes this alternative reason by a preponderance of the evidence, the statute provides that a jury may award only declaratory and injunctive relief and attorney’s fees, and shall not award monetary damages such as pay nor grant reinstatement. Further, there is nothing in the Supreme Court’s decision which creates a future bar to employer success on summary judgment before trial. Courts that are open to summary judgment very likely will continue to be so, while courts that are disinclined to grant summary judgment may find more support for their disinclination in this decision.
It is much too early to ring the death knell on employers in mixed-motive cases for another reason as well. Plaintiffs still will have to meet their burden of a preponderance of the evidence. Jurors scrutinize circumstantial evidence for credibility as much as they do direct evidence. Circumstantial evidence must make sense and sound true to a jury. The Supreme Court’s decision only puts mixed-motive discrimination cases on the same level as other civil litigation.
Back to the ultimate question, will the Court’s decision cause plaintiffs to bring mixed-motive cases? Perhaps not. Remember that in mixed-motive cases, if the employer proves a lawful reason for the termination, the employee does not get monetary damages.
If there is a word of caution for employers here, it is to go back to basics. Once again:
- When there is a performance or disciplinary problem, act on it. That is, take the proper disciplinary action immediately. It may leave less of an inference to jurors that subsequent action was for a discriminatory reason.
- Have the corrective action witnessed by another individual.
- Remind supervisors and managers to document performance and discipline problems, contemporaneously.