A series of decisions by the Supreme Court in United States has shifted the burden of proof in cases involving employment discrimination. While that does not sound like exciting news, a new study from…
A series of decisions by the Supreme Court in United States has shifted the burden of proof in cases involving employment discrimination. While that does not sound like exciting news, a new study from Cornell’s Center for Hospitality Research explains that changes in discrimination law can be expensive for employers—even if they are never found liable for employment discrimination.
The report, “The Mixed Motive Instruction in Employment Discrimination Cases: What Employers Need to Know,” was written by two professors at the Cornell School of Hotel Administration, David Sherwyn and Steven Carvell, and Joseph Baumgarten, a partner at Proskauer Rose, a national labor-law firm.
“To begin with, when an employer has actually discriminated against a person, that employee should be fairly compensated,” Sherwyn pointed out. “On the other hand, employers who have not violated the law should not have to pay damages.”
“What has happened is that the Supreme Court and the U.S. Congress have adjusted how employment discrimination cases are adjudicated,” Sherwyn continued. “After the Civil Rights Act of 1991 and several subsequent court cases, the result is that employers can find themselves paying thousands of dollars in court costs for both themselves and a plaintiff, even if a jury never finds that the employer discriminated against that plaintiff.”
In the report, the authors show how seemingly slight changes in the instructions given to a jury can result in radically different jury decisions. In the type of case, known as a “mixed motive” case, juries may find that an employer had both legitimate and discriminatory motives for making an employment decision.
“Since these cases involve two determinations, juries might want to emulate Solomon and ‘split the baby,’ seemingly giving both sides a ‘win,’” Sherwyn said. “However, that means the employer must come up with court costs and attorneys’ fees for both sides. In other words, the employer ends up with an expensive ‘win.’”
The report tests an approach developed by author Baumgarten for avoiding this unfair outcome.
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