Plaintiffs find a Litigation Oasis in the Desert | Court Makes it Easier for Employees to Prove Discrimination

September 1, 2003

Catharina Costa was a warehouse worker for Desert Palace, doing business at the glamorous Caesar's Palace in Las Vegas. This case did not concern gambling problems, but rather, Costa's treatment by management and coworkers. Costa was the only female employee in Caesar’s warehouse.

Costa was not a model employee and had numerous, escalating disciplinary problems. Sound familiar with any of your employees? The turning point came when she had a fist-fight with a coworker. Costa received a pink slip while the other employee received a mere five-day suspension (he did have a clean disciplinary record). Costa sued alleging she was terminated because of her sex.

Should you terminate Costa for the fight with the other employee? What happens if you terminate Costa for the fight, but later discover she may have also been terminated because her male coworkers did not want to work with a woman? Cases like Costa’s, where an employer has both proper and improper reasons for firing an employee, are called “mixed-motive” cases. They are “mixed” because the personnel action is tainted by discriminatory considerations. The Costa case discussed the kind of evidence an employee needs to prevail in a mixed-motive case.

There are two types of proof in employment cases: 1) direct evidence or a "smoking gun" such as a manager saying, "I don’t like working with women," and 2) indirect evidence that may suggest discrimination, such as paying higher bonuses to male employees, denying women training opportunities, paying women fewer fringe benefits, disciplining women more harshly, etc.

The Court ruled that Costa could use indirect evidence to prevail in her case. In other words, although Costa did not have proof of anti-female statements, she could use the disparities in men’s and women’s pay, benefits, discipline, etc. to show a general bias against women which, in turn, allows the jury to take the next step and conclude Costa was fired, in part, because she was female.

What does this decision mean for you? A lot in terms of conducting internal investigations. When investigating whether someone has been discriminated against, do not underestimate clues that may suggest discrimination, even if those clues do not tie directly to the personnel action at issue. For example, in Costa’s case, the key issue was her termination; however, Costa relied on disparities in seemingly unrelated personnel actions (i.e. training, discipline, etc.) to show management was biased against women. Do not make the mistake of assuming these other claims are rabbit trails that can be disregarded. Fully investigate each and every allegation to determine if it is true. If it is proven truthful, give serious consideration to reversing the personnel action at issue. Otherwise, like Desert Palace, your company could find itself on the receiving end of a “mixed-motive” lawsuit which is particularly difficult and costly to defend.

Finally, make sure your supervisors are “in tune” with their employees and understand the legal consequences if they fail to prevent discrimination. Costa’s employer might have avoided the long trip to the US Supreme Court if they had followed this simple rule.

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