Employment discrimination ruling carries many lessons.

• Author: Terman, Mark E.
• Position: Human Resources

A recent U.S. Supreme Court ruling making it easier for workers to win discrimination suits against their employers has some important lessons for businesses. The decision in Desert Palace Inc. v. Costa deals with job discrimination cases in which race, sex, religion or national origin is a factor, among others, in an employee's termination or disciplinary action.

THE CASE

A former employee of Desert Palace, a large hotel operator, sued the company for gender discrimination. During the trial, the jury heard evidence that the plaintiff was the company's only female warehouse worker, she was singled out for "intense stalking" by one of her supervisors, she received harsher discipline than men for the same conduct, she was treated less favorably than men in the assignment of overtime and supervisors repeatedly "stacked" her disciplinary record and used or tolerated sex-based slurs against her.

Company witnesses testified that the plaintiff constantly had problems with management and co-workers, which led to a series of escalating disciplinary sanctions ranging from warnings to denial of privileges to a suspension.

The plaintiff was fired after she had a physical altercation in a warehouse elevator with a male co-worker. The male employee, who had a clean disciplinary record, received a five-day suspension.

MIXED MOTIVE

At the close of evidence, lawyers presented arguments about what legal standards will be given to the jury in this "mixed motive" discrimination case. This meant that there was evidence that the decision to fire the employee was based on lawful, good faith business reasons (she was always at odds with and ruining the morale and productivity of her co-workers and supervisors) and on an unlawful factor (gender).

The company's counsel argued that precedent in mixed motive cases required "direct evidence" of discrimination, such as writings or decision-makers' testimony, that said the plaintiff was fired because of her gender.

Plaintiff's counsel argued that recent federal civil rights law amendments do not impose a direct evidence requirement, but rather only require evidence that gender was a "motivating" factor to establish that the employer engaged in an "unlawful employment practice."

There was no "smoking gun" direct evidence at this trial. The judge instructed the jury that the employer could be liable if it believed that gender discrimination was a motivating, but not the only, factor for the termination. With that...