Publications
The Supreme Court Speaks, And Everything Changes
Catharina Costa was the only female warehouse worker and forklift operator at Caesar's Palace Hotel & Casino in Las Vegas. She had a spotty disciplinary record, and was ultimately fired after getting into a physical altercation with a male co-worker - but the male co-worked received only a 5-day suspension. She sued, claiming she was fired because of her gender. At her trial, she introduced nothing but circumstantial evidence - the male got more lenient treatment, she said her supervisors had in the past singled her out for adverse treatment, they tolerated sex-based slurs, and so on.
Costa had no direct evidence of any kind indicating that she was fired for any reason other than her proven misconduct. Over Caesar's strident objections, the court allowed Costa's case to proceed anyway, based only on her circumstantial evidence - and a jury awarded her $364,000.
Eventually, Costa's case made it all the way to the United States Supreme Court. The Bush administration, along with many of the most prestigious business groups in the country, weighed in against Costa with erudite briefs urging that the Court require that employees like Costa be made to prove their cases with direct evidence, not just circumstantial suspicions.
The Supreme Court ruled in Costa's favor - NINE TO NOTHING.
The message could not be more clear: employees can now label you as a lawbreaker without the slightest direct evidence. It is almost as if you can be convicted of speeding on Route 95, not because anyone actually saw you speeding, but because you were caught speeding in the past on Route 95, or once talked about how you like to drive fast on Route 95. It is difficult to express how truly significant this decision is. Consider:
- When you discipline a protected employee for a particular offense, be prepared to have your history of enforcement respecting that offense scrutinized to see if one of your managers let some non-minority or non-disabled or younger employee off with a lesser penalty at some point in the past. Letting someone off the hook for a good reason, if not plainly documented and justified, could easily lead to the circumstantial argument that you unlawfully discriminated;
- Every time one of your managers promotes a non-disabled employee or male employee over a disabled or female employee, for instance, be prepared to have their respective employment files scrutinized microscopically to determine if there was verifiable justification for the action. If they both have vanilla evaluations and there is nothing objective to distinguish one from the other, be prepared for the circumstantial argument that disability or gender was really what motivated your company;
- Every time you hire a white male over a minority female, be prepared to have your company's management emails scrutinized for racial jokes, be prepared for witnesses who testify on the "private" sexual innuendo exchanged in the men's room, and be prepared for a statistical analysis of your historical record of hiring minority females.
We are not here to determine if this is good or bad. There is discrimination, still, in American workplaces, and employees subjected to such practices have very tough rows to hoe in proving their cases.
Our message is this: if you are an employer who takes pains not to unlawfully discriminate, you will still incur a substantial risk of being held liable for unlawful discrimination if you do not take action now.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
