Supreme Court rules 'smoking gun' evidence not required

By G. Phillip Shuler

A unanimous U.S. Supreme Court on June 9 held that direct evidence is unnecessary in a mixed motive bias case where both impermissible and permissible reasons played a role in an employment decision. (Desert Palace, Inc. v. Costa) In a ruling that will be welcomed by employment discrimination plaintiffs, the Court ruled that a plaintiff need not produce "smoking gun" evidence for a jury to be permitted to find that an employer had both lawful and unlawful reasons to discharge an employee.

Forklift operator Catherine Costa was entitled to present circumstantial evidence of discrimination against her employer, which fired Costa for poor performance and her involvement in a physical altercation with an alleged sexual harasser. Justice Thomas, writing for the unanimous court stated, "[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."

Prior to this decision, all courts of appeal except the Ninth Circuit had found that for the jury to be instructed that it should determine whether the employer had mixed motives, the plaintiff had to present direct evidence of discrimination such as a statement by the employer of discriminatory intent. The case is significant because in a mixed motive case the burden of proof is shifted to the employer to prove it would have taken the same action in the absence of the impermissible motivating factors in order to avoid damages.

The decision will undoubtedly place more pressure upon employers to settle cases and underscores the importance of supervisor training and other proactive efforts to prevent harassment and other practices which could be used as evidence of unlawful motive. The jury instructions are likely to be confusing to already confused juries and will likely result in the jury "splitting the baby."

Louisiana federal court rules pregnancy claim can proceed. The receptionist for a Louisiana construction contractor who received "stellar" and "10 out of 10 stars" ratings a few months before she was demoted and then discharged can proceed to trial with her pregnancy discrimination claims, Judge Englehardt of the Eastern District of Louissiana has ruled. (Templet v. Hard Rock Construction Co.).

Hard Rock hired Tiffany Templet as a receptionist in July 1999. In less than a year, she was promoted to accounting and administrative assistant and the company evaluated her as "stellar" and a "10 out of 10 stars" employee. After she announced her pregnancy in July 2001, the situation changed when she was demoted to the receptionist desk. Templet stated the owners told her the demotion was because she would be missing work because of her condition and because the receptionist job was less stressful.

Two months later she was fired because, according to the company, her performance declined. The company cited three incidents to support its claim of declining performance - a delayed bank deposit, a failure to procure a new office phone and tardiness - all of which occurred in the three days preceding her discharge.

Judge Englehardt concluded that Templet produced enough evidence to warrant a trial on her pregnancy discrimination claims. He also allowed claims for overtime under the Fair Labor Standards Act to proceed.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.