By Mr Robert A. Bloom, Mr James W. Gladden Jr, Ms Marcia E. Goodman, Ms Marian C. Haney, Mr James D. Holzhauer, Ms Kim A. Leffert, Ms Danuta B. Panich, Mr Jeffrey S. Piell, Mr Barry A. White From the Chicago office. Ms Diana L. Davis From the Houston office, Ms Teresa A. Beaudet from the Los Angeles office, Mr Gary D. Friedman from the New York offfice, Mr Robert P. Davis from the Washington office, Mr Julian Roskill from the London office, Mr Michael Orth and Mr Guido Zeppenfeld from the Frankfurt office

Please click on the link provided at the end of this article to read all the Labor and Employment updates in full, as detailed below.

Direct Evidence Not Required In "Mixed Motive" Cases Under Title VII

In a unanimous decision, written by Justice Thomas, the United States Supreme Court ruled that direct evidence of discrimination is not required in order to receive a mixed motive jury instruction at trial under Title VII. Desert Palace, Inc. v. Costa.

Catharina Costa was employed by Desert Palace, Inc., as a warehouse worker and heavy equipment operator. She was the only woman in this job and in her local Teamster’s bargaining unit. After experiencing a number of problems with management and her co-workers that led to a series of disciplinary sanctions, Costa was finally terminated in connection with a physical altercation with a co-worker. Her co-worker, who had a clean disciplinary record, received only a five-day suspension.

"Direct Evidence" Not Adduced

Costa filed a lawsuit against Desert Palace in the United States District Court for the District of Nevada, asserting claims of sex discrimination and sexual harassment under Title VII. The District Court dismissed the sexual harassment claim, but allowed the sex discrimination claim to go to the jury. The District Court gave the jury a mixed-motive instruction, to which Desert Palace objected since Costa had failed to adduce "direct evidence" that sex was a motivating factor in her dismissal. (A "mixed motive" instruction informs the jury that it is a violation of Title VII if race, color, religion, sex or national origin was a motivating factor for any employment practice.)

The jury rendered a verdict for Desert Palace. The Court of Appeals for the Ninth Circuit initially vacated the verdict and remanded the case to the District Court, but later reinstated the District Court’s judgment after rehearing the case en banc. The en banc court concluded that the Supreme Court’s earlier precedent requiring "direct evidence" in mixed-motive cases had been "wholly abrogated" by the Civil Rights Act of 1991 ("1991 Act"). Accordingly, the Ninth Circuit held that a plaintiff in a mixed-motive case need not produce direct evidence in order to obtain a mixed-motive jury instruction. The Supreme Court accepted review of the case to resolve the circuit split on this issue of whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under the 1991 Act.

"Forbidden Consideration"

In analyzing this issue, the Supreme Court noted that the 1991 Act "unambiguously states that a plaintiff need only ‘demonstrat[e]’ that an employer used a forbidden consideration with respect to ‘any employment practice.’ . . . On its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence." Further, Congress explicitly defined the term "demonstrates" in the 1991 Act, with no mention of a special evidentiary showing. The Court found Congress’s failure to include language requiring direct evidence to be "significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42."

Further, according to the Supreme Court, Title VII’s silence with respect to the type of evidence required in mixed motive cases also suggests that there should be no departure from the conventional rule of civil litigation that generally applies in Title VII cases. That is, circumstantial and direct evidence are treated alike. Nor has the adequacy of circumstantial evidence been questioned by the Court in the criminal context. The Court noted that there has been no instance in which the Court has restricted a litigant to the presentation of direct evidence, absent some affirmative directive in a statute.

Sufficient Evidence

Finally, the Court noted that the use of the term "demonstrates" in other provisions of Title VII tends to show further that the 1991 Act does not incorporate a direct evidence requirement, particularly in the articulation of the employer’s evidentiary showings. Thus, "[a]bsent some congressional indication to the contrary, we decline to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue."

Thus the Supreme Court agreed with the Ninth Circuit that no heightened showing is required under the 1991 Act. "In order to obtain an instruction under [the 1991 Act], a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for an employment practice.’"

Other Interesting Supreme Court Opinions

ERISA and the "Treating Physician Rule." An employee of a Black & Decker subsidiary whose claim for disability benefits was denied brought suit under the Employee Retirement Income and Security Act ("ERISA") against the Plan. The claim was denied based on an independent examination that contradicted the employee’s treating physician’s finding that the employee’s medical condition rendered him unable to work. The trial court granted summary judgment for the Plan. On appeal, the Court of Appeals for the Ninth Circuit reversed and granted summary judgment in favor of the employee. The Ninth Circuit held that ERISA plan administrators must follow a "treating physician rule." Under this rule, an administrator who rejects the opinions of a claimant’s treating physician must come forward with specific reasons for the decision, based on substantial evidence in the record. The Ninth Circuit found that the administrator had not provided adequate justification for rejecting the opinion of the employee’s treating physician. The Supreme Court, in a unanimous decision, held that ERISA does not require plan administrators to give special deference to the opinions of treating physicians, overturning the Ninth Circuit’s decision. Black & Decker Disability Plan v. Nord.

The FLSA and Removal. An employee sued his former employer in a Florida state court for unpaid wages, liquidated damages, prejudgment interest and attorneys’ fees under the Fair Labor Standards Act of 1938 ("FLSA"). Section 216(b) of the FLSA provides that a suit may be maintained "in any Federal or State court of competent jurisdiction." 29 U.S.C. §216(b). The employer removed the case to federal district court under 28 U.S.C. §1441(a). The employee sought to have the case returned to state court, arguing that §216(a) provides an exception to §1441(a)’s general removal authorization. The trial court denied the employee’s motion to have the case returned to state court, and the Court of Appeals for the Eleventh Circuit affirmed. Upon review of the issue, the Supreme Court held that §216(a) does not bar removal of a FLSA suit to federal court. Breuer v. Jim’s Concrete of Brevard, Inc.

The ADA and Shareholders-Directors. An employee filed suit against her employer, a medical clinic, under the Americans with Disabilities Act of 1990 ("ADA"). The clinic moved for summary judgment, arguing that it was not covered by the ADA because it did not have 15 or more employees for 20 weeks as required by the ADA. The clinic’s argument was premised on not counting as employees the four physician-shareholders who owned the professional corporation and constituted its board of directors. The trial court granted the clinic’s motion, concluding that the physicians were more analogous to partners in a partnership than shareholders in a corporation and thus were not employees. The Court of Appeals for the Ninth Circuit reversed. The Supreme Court held that in determining whether shareholder-directors of a corporation should be counted as employees under the ADA, the key is control, and courts should assess whether the shareholder- directors operate independently and manage the business, or instead are subject to the firm’s control. Clackamas Gastroenterology Associates, P.C. v. Wells.

Please click here to view this and the following articles detailed below in full, originally published in Mayer, Brown, Rowe & Mawe LLP's Fall 2003 Labor and Employment Newsletter

Contents

  • Other Interesting Supreme Court Opinions
  • Affirmative Action in University Admissions Policies and the Workplace
  • New York Court Orders Plaintiff to Share Cost in Retrieval of Electronic Discovery
  • New York Federal Court Finds that ADEA Does Not Apply to Foreign Parent of U.S. Subsidiary
  • Second Circuit Expands Definition of"Supervisor" In Order To Impute Vicarious Liability to Employer in Hostile Work Environment Case
  • To Disclose, or Not To Disclose ... Must an Employer Reveal Pending Changes in ERISA Plans?
  • Sexuality and Benefits
  • The Direct Threat Defense to ADA Claims
  • New York Enacts "Patriot Plan" to Provide Benefits and Protections to Military Personnel and Their Families
  • Invasion of Privacy and the Handling of Employee Records
  • Foreseeable Danger Posed By Employees
  • Legislative Activity

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