(The Return of) Ignatz, by Sam Heldman

Friday, April 18, 2003

S.Ct. prediction
The second case to be argued Monday is an employment discrimination case, Caesar's Palace v. Costa. You should go to Caesar's Palace someday if you haven't been; it's the pinnacle of something.

If you just read the basic provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. -- the main federal statute banning employment discrimination on the basis of race, sex, national origin, and religion -- you would find it hard to imagine the doctrinal complexities that have developed through judicial interpretation, like barnacles (or flowers, depending on your point of view I suppose) on the relatively simple rule prohibiting employment discrimination. There are buzzwords like "prima facie case," "direct evidence" vs. "circumstantial evidence," "mixed motive", "pretext plus", and so forth.

This case presents a contention, by the employer Caesar's Palace, that I have a hard time even getting my head around in order to state it simply. It seems that what Caesar's Palace is saying is that, in a case without "direct evidence" of discrimination, it should be harder for an employee to prevail in a "mixed motive" case than it is when there is direct evidence.

It is settled that, at least in a case with direct evidence, if the employee proves that a prohibited discriminatory animus was a substantial part of the reason for the adverse employment action, then the employer bears the burden of proving that it would have made the same decision even if it hadn't relied in part on that unlawful factor. "Huh?" you're saying. Let me try again. One conceivable rule is that an employee would have to prove not only that (e.g.) race was a factor in the employer's thinking, but moreover that it was the dispositive factor -- in other words, that the employer would not have taken the adverse action had it not been for that factor. But that rule has been rejected, by the Congress, in § 2000e-5(g)(2)(B): if an employee proves that (e.g.) race was a factor, then the employer has the burden of proving that it would have made the same decision even without that factor. Under this rule, the employee does not have to prove that (e.g.) race was dispositive in the employer's decisionmaking. All of this is what's known as the "mixed motive" issue.

Let me give a practical take on this for a minute. There is always an arguably legitimate reason to fire or discipline any employee. Nobody's perfect. Everbody does something wrong from time to time. So, whenever anybody is fired or disciplined, it's nearly impossible to prove that the employer's mind was totally lacking any legitimate rationale. The real crux of it is the question whether the employer was also being more harshly, less generously, disposed towards the employee's failings because of the employee's race, sex, or what have you. So, as I see it, nearly every case is really a mixed motive case at its core.

Back to this case. Caesar's claims – and some courts have agreed – that the burden in "mixed motive" cases shifts to the employer only in those cases where the plaintiff has "direct" evidence – something like smoking-gun proof -- of discriminatory animus. In cases involving circumstantial evidence, on the other hand – e.g., cases where the plaintiff has no smoking gun but seeks to prove discrimination in some other way that is recognized as legitimately probative under applicable caselaw – Caesar's says that a different, more pro-employer, rule should apply. This argument seems to have its roots in Justice O'Connor's concurrence in Price Waterhouse, a case from 1989. The Ninth Circuit, though, rejected (pdf file) Caesar's argument.

Why will the Supreme Court affirm despite the curse of the Ninth Circuit? Because, for one thing, the Ninth Circuit was plainly right; whatever one thinks of Justice O'Connor's focus on direct-evidence cases in her Price Waterhouse concurrence, that's really irrelevant because the Congress thereafter responded to Price Waterhouse with the statutory language I linked above, and that language makes no distinction between direct evidence and circumstantial evidence cases. Those terms aren't even mentioned in the statute, so the Court should not make an employer's liability depend on some difference between those judicially-created concepts. Moreover, when push comes to shove, this Supreme Court can sometimes make a quite reasonable decision in Title VII cases – see, for instance, this case from last year on the "continuing violation" doctrine. I put my faith in Justice Thomas and maybe even everybody to join the "liberal" Justices here, and so I say "AFFIRM" There is, by the way, a real possibility that the Court will dismiss the case without a decision, because it's not even clear that Caesar's effectively preserved this legal issue at trial.

posted by sam 8:03 AM 0 comments


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