You would be outraged if the government told you what to think or how to form opinions. Americans have constitutionally guaranteed rights of freedom of association and of speech, and the government isn’t allowed to infringe upon those rights. Except, it seems, by getting their employers to do the job by restricting the speech of employees. While the government can’t control an individual’s beliefs and statements, the use of circumstantial evidence to overturn legitimate employment decisions may require employers to restrict what employees can say. That’s the upshot of the Supreme Court’s June 2003 decision in Desert Palace, Inc., dba [doing business as] Caesars Palace Hotel & Casino v. Costa. The decision greatly increases plaintiffs’ chances for success in "mixed motive" cases, and makes it more difficult for employers to prevail.
In mixed-motive cases, a company demonstrates that it had a legitimate motive for taking an adverse action against an employee, even if a discriminatory reason may also have existed. In Desert Palace, the plaintiff alleged that she was sexually harassed and was terminated because of her sex. The hotel contended that the woman was fired because she had problems with managers and coworkers. The high court held that it isn’t necessary to present direct evidence of discrimination in a mixed-motive case. A plaintiff can seek a mixed-motive jury instruction merely by presenting sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that a protected status such as race, sex, religion or national origin was a factor, but not the sole, motivating cause for taking an adverse action.
For employers, it’s a bad outcome. And they are likely to ask attorneys why an employee who was fired for legitimate reasons could still prevail in court under discrimination laws. As a result of the court’s decision in mixed-motive cases, any circumstantial evidence of politically incorrect beliefs or views concerning a protected class will now be considered. What should be kept in mind, however, is that just because a supervisor harbors thoughts against a protected or unprotected class, it does not prove that the person in charge acted on personal beliefs or failed to comply with Title VII. But a disgruntled employee may be able to introduce circumstantial evidence of discriminatory beliefs to prove that there may have been an additional unlawful reason for the challenged action, which resulted in a Title VII violation.
If, for example, you hire a manager who is a member of a local country club that doesn’t admit women and who has been an outspoken advocate of maintaining the old membership rules, trouble may erupt. You can bet that if the manager fires a female employee, her lawyer is going to do everything possible to make sure that the jury knows about the manager’s role in prohibiting women from belonging to the country club. This would be a way of characterizing him as a person who hates women and would act against them.
Not surprisingly, plaintiffs’ attorneys praised the Supreme Court’s decision, believing that it will make their jobs easier. Summary judgment will be harder to get in cases where there is more than a scintilla of circumstantial evidence of discriminatory intent, allowing a plaintiff to get the case before a jury.
For employers, however, litigation will be more expensive, and more risky. In essence, the impact will be to shift the burden of proof to the employer, who must prove that discrimination did not occur. This shift contradicts more than 25 years of precedent under Title VII, and transforms employers into social engineers. Congress amended Title VII in 1991 in response to a previous Supreme Court decision that held that a plaintiff could not win a discrimination case if there was a legitimate reason for an employer’s action even if there was also a discriminatory motive.
The outraged lawmakers changed the law so that plaintiffs could prevail in a discrimination case if they could show that protected status "was a motivating factor for any employment practice, even though other factors also motivated the practice." In other words, plaintiffs could win when a legitimate reason for the action existed, as long as a discriminatory reason was also present. The bone thrown to employers was to limit the relief available if the employer demonstrated that the same action would have been taken "in the absence of the impermissible motivating factor." Courts wrestled with whether or not a plaintiff had to present direct evidence of discriminatory intent to obtain a mixed-motive instruction for the jury, or if it was sufficient to have indirect, or circumstantial, evidence.
With the recent decision, the Supreme Court has answered the question, and it’s the employer that is going to be hurt. Clearly, it was the intent of Congress to force employers to control or suppress lawful beliefs, statements and actions by supervisors, even when there is no separate effect on the terms or conditions of employment. In essence, the government is telling employers that if their supervisors do not think and act a certain way, courts will allow plaintiffs to use evidence of those personal beliefs against the employer to help prove discriminatory intent. That is even if you, as the employer, legitimately take action against the plaintiff. In addition, this failure to control or suppress such beliefs may result in the employer’s being unable to prove a negative--that discrimination did not exist. You can be sure that employers now risk having every case turned into a mixed-motive case to allow juries to consider irrelevant information and second-guess business decisions.
To avoid such negative results, employers must move even more cautiously when taking adverse employment actions. There should be an objective review of any decisions to determine if there is, or could be, any appearance of a discriminatory motive. Employers must also be aware of what circumstantial evidence a plaintiff may seek to introduce to show that the decision was motivated by an impermissible factor. And it is critical that employers maintain the necessary documentation to demonstrate that they would have taken the same action regardless of the individual’s protected status. Until and unless Congress stops using employers to accomplish its politically correct social goals, employers must be prepared to defend their actions.
Workforce Management, February 2004, pp. 14-15 -- Subscribe Now!