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Supreme Court eases burden for employees fighting discrimination.

The U.S. Supreme Court in June made it easier for employees to bring discrimination suits.

The decision takes away employers' evidentiary advantage in discrimination cases, said the plaintiff's attorney, Robert Peccole of Las Vegas.

Many courts have held that plaintiffs in so-called mixed-motive case--employment disputes in which both discriminatory and legitimate factors are alleged to have played a part in an employer's actions--were required to provide direct, rather than circumstantial, evidence, despite language to the contrary in the 1991 Civil Rights Act. In Desert Palace, Inc. v. Costa, Justice Clarence Thomas clarified the question, writing for the unanimous court that "direct evidence of discrimination is not required in mixed-motive cases." (123 S. Ct. 2148 (2003).)

Although the 1991 act required plaintiffs to provide a preponderance of evidence, some courts had continued to adhere to Justice Sandra Day O'Connor's assertion in Price Waterhouse v. Hopkins that a plaintiff "must show by direct evidence that an illegitimate criterion was a substantial factor" in triggering the employer's action. (109 S. Ct. 1775 (1989).) That standard led to many summary judgments for defendants.

In Costa, the Court concluded that the act's standard was not so stringent." The statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence," Thomas wrote, adding that the Court "acknowledged the utility of circumstantial evidence in discrimination cases." O'Connor wrote a concurring opinion.

The ruling arose from a sex discrimination lawsuit brought by Catharina Costa, the only female warehouse worker and heavy-equipment operator at Caesars Palace hotel and casino in Las Vegas. She was the subject of several disciplinary actions, including suspension. Costa was finally fired after fighting with coworker Herbert Gerber, who accused Costa of hitting him. Gerber received only a five- day suspension. Caesars claimed that the discrepancy in discipline was due to Gerber's clean disciplinary record.

At trial, Gerber recanted his charges against Costa, and evidence showed that Caesars had suppressed his disciplinary record.

Costa also presented evidence that she had been stalked by one of her supervisors; that her supervisors had used outdated information, including disciplinary charges that had been dismissed, in her termination arbitration; and that she had received harsher reprimands than her coworkers for the same conduct. For example, Costa demonstrated that she had been suspended for 30 days for a violation for which her coworkers had received only reprimands. Costa also claimed that she was not allowed in a break room all the men used, and that she was denied coveted overtime, which was given to her male coworkers. Some of her coworkers corroborated these claims.

"Now I think we're saying to the defense, 'It's not going to be as easy as you thought,'" said Chicago civil rights attorney Monica McFadden.

She predicted the reduced burden of proof will pave the way for settlement in more cases. Under the Civil Rights Act, even if discrimination is found to be only one of many factors in an employer's actions, the plaintiff is due attorney fees, if not damages. "Anything that increases uncertainty for the defendant is much more likely to push toward settlement," McFadden said.

But, she cautioned, while the Court's clarification may make it easier for suits to reach juries, the ruling doesn't make it easier to win damages. "If you want damages," McFadden said, "you better go out there and disprove everything the defendant has just said."
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Author:Tischler, Eric
Date:Sep 1, 2003
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