It’s not as if discrimination lawsuits have ever been a walk in the park, but it used to take solid evidence of wrongdoing to get them before a jury.
That changed in June, when the U.S. Supreme Court unanimously ruled that indirect evidence of discrimination, if strong enough, is enough to send a case to trial.
What’s it all mean? Attorney George Crisci, a member of Ulmer & Berne’s Employment Labor and Law and Public Law Groups, expects the decision will up the ante when it comes to settlement talks between disgruntled employees and their former bosses.
“It’s going to increase the risk that employers take every time a case goes to a jury,” he says. “It’s going to increase how much it’s going to cost to settle, because plaintiffs now have a greater opportunity to win these cases.”
The case that prompted the recent Supreme Court decision involved a Mississippi man who worked for a toilet factory for 40 years before being fired by a much younger supervisor. A jury awarded the man $100,000, but the U.S. Circuit Court of Appeals overturned the decision, ruling that there was not enough direct evidence of age discrimination. In fact, the only comment about age brought to light during the case was the fact that the supervisor had once said the plaintiff was “older than the Mayflower.”
The Supreme Court said, however, that direct proof of an illegal motive is not always required for a successful age discrimination lawsuit. Writing for the court, Justice Sandra Day O’Connor said a federal appeals court wrongly relied on “the premise that a plaintiff must always introduce additional, independent evidence of discrimination.”
While the decision most likely won’t lead to a landslide of discrimination cases, Crisci says business owners who find themselves in the cross hairs will likely be caught between a hefty payout to settle or the uncertainty of a jury’s decision.
“When you send it to a jury, anything is possible,” explains Crisci. “And, if you get an adverse verdict, it’s very hard to overturn.”
The only way for business owners to protect themselves is with thorough documentation of each and every disciplinary action taken against employees. For years, Crisci has been telling businesses to document, but says that now it is absolutely crucial to have the ammunition to defend yourself if you get hauled into court.
“That is going to be the only sure way that you have to be able to win one of these cases either on summary judgment or in front of a jury,” he explains. “You’re going to have to prove that the reasons were true and justified and that’s the practical impact of it.
“You just can’t make decisions that aren’t supported by solid evidence.” How to reach: Ulmer & Berne, www.ulmer.com
Jim Vickers ([email protected]) is an associate editor at SBN.
