Workplace Discrimination: Ninth Circuit Makes It Easier For Employees To Sue When Employer Had Discriminatory–And Legitimate–Reasons For Discipline

Because of an important new Ninth Circuit Court of Appeals ruling, employers may now have an uphill battle to fight when faced with allegations that discrimination was one factor—even if not the only factor—in an adverse employment decision such as a termination. We’ll explain what this is about and suggest ways you can avoid this situation altogether by removing bias from your decision-making process.

Lone Female Equipment Operator Fired

Caesars Palace in Las Vegas terminated Catharina Costa from her position as the sole female heavy-equipment operator after she had an altercation with a male co-worker.Costa turned around and sued Caesars for sex bias. Caesars countered that the termination stemmed from Costa’s lengthy disciplinary record. But Costa argued she repeatedly was singled out for discipline because she is a woman. She pointed out that the male co-worker she fought with received only a five-day suspension and that she was often disciplined for tardiness, absenteeism and offensive language while male co-workers were not.

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Jury Verdict For Employee

A jury ultimately found in Costa’s favor and awarded her $364,377 (which was later reduced to $264,377). Caesars appealed, arguing that because Costa asserted that Caesars had mixed motives for the discharge—that is, both lawful and discriminatory reasons—she had to present direct evidence to prove there was a discriminatory motive. But all she could point to was indirect, or circumstantial, evidence that she was treated differently from male employees.

Heavy Burden For Employers

The Ninth Circuit, which covers California, upheld the jury verdict. The court explained that an employer is liable for discrimination when an employee demonstrates that an adverse employment decision is the result of mixed motives. This is true, said the court, even if the employee has no direct evidence of discrimination, such as testimony that a key decision-maker made a biased statement. The employer can only avoid paying damages by proving that it would have made the same decision if it had had no discriminatory motive.

In this case, the court said it was reasonable for the jury to conclude that Caesars had mixed motives for terminating Costa. Although evidence showed that managers were legitimately concerned about Costa’s misconduct, there was also evidence that the casino wouldn’t take such drastic disciplinary measures against a man. And because Caesars couldn’t prove otherwise, the damages award was reasonable.

Erasing Bias From Decision-Making

Before this decision, many courts had held that employees in a mixed-motive case could only prove bias with direct evidence. By eliminating the direct evidence requirement, this new ruling makes it easier for juries to hold employers liable when an employee asserts that there were mixed reasons for an employment decision.You can stay out of trouble by taking some steps to avoid bias in decision-making:

 

1. Document all employment actions. Being able to point to documentation supporting the legitimate reasons for your actions is key to defending yourself against accusations that your decisions were biased.

    

2. Provide training on preventing bias. Train managers and supervisors on how to treat all employees equally regardless of any protected factors such as race, sex or age. Also instruct them to make no comments that could indicate bias in their decision-making.

    

3. Review adverse actions. It’s wise to have someone in your HR or legal departments take a second look at all proposed disciplinary decisions to ensure that they’re consistent with company policy and free from bias.