High Court Rules For Workers In Bias Case

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By Steven Brostoff, Washington Editor

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NU Online News Service, June 10, 1:07 p.m. EDT,Washington?In a blow to employers, the United StatesSupreme Court eased the burden faced by plaintiffs seeking to proveemployment-based discrimination.

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The high court ruled unanimously that in "mixed motive" cases,where both legitimate and illegitimate factors motivated anemployer's decision, the plaintiff need not present direct evidenceof discrimination.

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Rather, the court said in the case of Desert Palace Inc. v.Costa, circumstantial evidence is sufficient.

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Employer's groups had urged the court to require direct evidenceof discrimination in mixed motive cases.

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In a joint brief filed by the Equal Employment Advisory Counciland the U.S. Chamber of Commerce, both of Washington, the two majoremployer's associations said that if direct evidence ofdiscrimination is not required, employers would face significanthurdles when defending themselves against discriminationclaims.

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Indeed, the groups said, every discrimination claim will beturned into a mixed motive case, shifting the burden to theemployer in every instance to prove its employment action was basedon legitimate criteria.

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"Employers would have to prove their innocence, even if theplaintiff presented only circumstantial evidence ofdiscrimination," the groups said in their brief.

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The case involves Catharina Costa, who was employed by DesertPalace?the owner of Caesar's Palace Hotel in Las Vegas?as awarehouse worker and heavy equipment operator. Ms. Costa was theonly woman in this job.

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Ms. Costa was the subject of several disciplinary actions byDesert Palace. Following a physical altercation with a maleco-worker, Ms. Costa was terminated. The co-worker, who had a cleandisciplinary action record, received a five-day suspension.

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Ms. Costa sued Desert Palace charging sex discrimination,arguing that she received harsher discipline than men for the sameconduct. She also argued that she was treated less favorably thanmen in the assignment of overtime, that her supervisors stacked thedisciplinary record against her, that her supervisors toleratedsexual slurs against her, and that she was stalked by one of hersupervisors.

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The crux of the case involves the instructions given to the juryby the United States District Court judge.

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The judge told the jury that if it found that the plaintiff'ssex was a motivating factor in the defendant's treatment of theplaintiff, then the plaintiff is entitled to the verdict even ifthe defendant's conduct was also motivated by a lawful reason.

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The judge also told the jury that if it found that thedefendant's treatment of the plaintiff was motivated by both genderand lawful reasons, it must decide whether the plaintiff isentitled to damages.

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The plaintiff is entitled to damages, the judge said, unless thedefendant proves by a preponderance of the evidence that it wouldhave treated the plaintiff similarly even if gender had played norole in the decision.

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The jury ruled in favor of the plaintiff.

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Desert Palace appealed the jury instruction, arguing that theplaintiff did not provide substantial evidence of discrimination.But after several hearings, the 9th Circuit Court of Appeals upheldboth the jury instruction and the award.

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In a decision written by Justice Clarence Thomas, the high courtunanimously upheld the 9th Circuit's decision.

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The underlying statute, the court said, referring to the CivilRights Act of 1964, unambiguously states that a plaintiff need onlydemonstrate that an employer used a forbidden consideration withrespect to an employment practice.

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The statute does not mention, much less require, that aplaintiff show discrimination through direct evidence, the courtsaid.

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Moreover, the court added, Congress passed another Civil RightsAct in 1991 and could have required direct evidence in thatstatute. However, the court noted, it did not do so.

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The court said that circumstantial evidence may, in some cases,be more certain, satisfying and persuasive than directevidence.

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Indeed, the court noted, it has never questioned the sufficiencyof circumstantial evidence in criminal cases, even though proofbeyond a reasonable doubt is required.

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