Supreme Court Loosens Evidence Standard in Mixed-Motive Cases: Workers to Benefit from Ruling
June 10th, 2003 | Paula Brantner
In a rare unanimous decision (which is even more rare when you consider that it’s an employee-friendly decision written by Justice Clarence Thomas), the U.S. Supreme Court today ruled in favor of the employee’s position in Desert Palace, Inc. v. Costa. While employee advocates and attorneys are generally applauding this victory because of its modifications to the already-difficult proof standards in certain types of cases, and the likelihood that more cases will survive summary judgment, workers should rejoice as well, because the result most likely means that fewer employment cases will be thrown out of court prematurely.
The case was initiated by Catherina Costa, a warehouse worker and heavy equipment operator for Desert Palace, Inc., the owner of the famous hotel and casino in Las Vegas, Caesar’s Palace. For most of her life, Costa had worked in a male-dominated environment, operating heavy equipment and driving trucks, and this job was no different: she was the only woman in this job (operating the forklifts and pallet jacks) and in her local Teamsters bargaining unit. Before long on the job, Costa began to have trouble at work, experiencing a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Costa ultimately was fired after she was involved in a fight in a warehouse elevator with fellow Teamsters member Herbert Gerber. Because the facts surrounding the incident were in dispute, both Costa and Gerber were subject to discipline, but since Gerber had a clean disciplinary record, he received only a 5-day suspension rather than termination like Costa. (See On the Docket for further factual information about this case.)
In response to her firing, Costa filed a lawsuit against her employer in the federal district court of Nevada, bringing claims of sex discrimination and sexual harassment under Title VII. The District Court dismissed the sexual harassment claim, but allowed the claim for sex discrimination to go to the jury. At Costa’s trial, she presented evidence to a jury 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. Although her employer asked for the case to be thrown out at trial (called a “motion for judgment as a matter of law,”) the judge denied that motion and submitted the case to the jury. The jury was given a set of instructions to help decide the case properly under the law, and two are relevant to this case. One instruction told the jury that
>”[t]he plaintiff has the burden of proving … by a preponderance of the evidence” that she “suffered adverse work conditions” and that her sex “was a motivating factor in any such work conditions imposed upon her.”
The second jury instruction at issue was the following “mixed-motive” instruction:
You have heard evidence that the defendant’s treatment of the plaintiff was motivated by the plaintiff’s sex and also by other lawful reasons. If you find that the plaintiff’s sex was a motivating factor in the defendant’s treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant’s conduct was also motivated by a lawful reason.
However, if you find that the defendant’s treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff’s gender had played no role in the employment decision.
The employer unsuccessfully objected to this instruction, claiming that Costa had failed to show any “direct evidence” (evidence that definitively proves a discriminatory motive by itself, with no further explanation or context necessary) that sex was a motivating factor in her firing or in any of the punitive actions taken against her. (Other courts had previously required that some direct evidence be shown (along with the defendant’s lawful reason) before the jury would be allowed to decide whether a “mixed motive” (where a legitimate reason is combined with an improper, discriminatory one) entitled an employee to an award of damages. However, this judge rejected the logic behind those cases and allowed the case to proceed) The jury awarded Costa $364,377 in damages, including back pay, compensatory damages and punitive damages.
The employer then appealed this decision to the next highest court, the 9th Circuit Court of Appeals, and the 9th Circuit upheld the lower court’s decision, ruling in favor of Hibbs. (A smaller panel of 9th Circuit judges initially ruled against Costa, but was later overruled by the larger panel of the 9th Circuit, in what is called an “en banc” review) In January, the Supreme Court decided to hear the case, and heard arguments in April about whether the jury in Costa’s case had been given the appropriate jury instructions.
Here’s what all nine members of the Supreme Court agreed to when ruling in Costa’s favor: In 1991, when Congress amended Title VII (the federal antidiscrimination law) in the Civil Rights Act of 1991, Congress did not intend to create an additional burden for employees to win mixed-motive cases. Since direct or circumstantial (evidence that is not directly from an eyewitness or participant and requires some additional reasoning to prove a fact) evidence is permitted to show discrimination in other kinds of employment discrimination cases, in order to be consistent, it should be allowed in mixed-motive cases as well. While the Court engages in some additional analysis of the language found in various laws and previous rulings (and clears up some confusion about the import of some of its previous rulings) to reach this conclusion, this ruling is relatively very simple and straightforward: no direct evidence is required in mixed motive cases.
What does this mean for employees who bring lawsuits against their employer? It means that throughout the country, those who had mixed motive cases (estimated in the thousands) will have a much easier time moving forward, as the 9th Circuit was previously the only federal appellate court to permit circumstantial evidence in mixed motive cases. (See New York Times article.) There are a number of cases where courts have argued about whether certain evidence presented by the employee should be considered direct evidence or circumstantial evidence, because the distinction was critical as to whether the case would go forward; since cases will now be allowed to go forward in either event, fewer cases will be dismissed, either before trial in summary judgment (a pre-trial determination as to whether the case has sufficient legal merit to move ahead) or at trial after all the employee’s evidence has been submitted. Eric Schnapper, a University of Washington law school professor who represented Costa, said the ruling should make companies pay more attention to discrimination complaints. “Now it’s going to be easier to win these cases. Employers are going to have to be careful about their practices,” Schnapper said. Defendants bemoaned the decision, as the Desert Palace lawyer claimed that “many employers accused of workplace discrimination will be considered guilty until they can prove themselves innocent.” (See Washington Post article.) While this case may be of most interest to lawyers rather than members of the public, it is still a very good outcome for workers to celebrate.