Eighth Circuit Ignores Supreme Court Desert Palace Decision

Posted on May 15, 2008 by Christopher McKinney

This week the Eight Circuit Court of Appeals issued a decision in Gross v. FBL Financial Services, No. 07-1490 (8th Cir. May 14, 2008), ignoring the Supreme Court's opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

The issue has to do with the question of whether so-called "direct evidence" is still required in order to obtain a "mixed-motive" jury instruction.  The direct evidence standard was formulated by Justice O'Connor in her Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) concurring opinion.  Following Price Waterhouse, many circuits adopted this stricter standard of proof. 

In 1991, Congress amended Title VII to specifically provide for a mixed-motive rule.  In Desert Palace, the Court, including Justice O'Connor, clearly indicated that the distinction between requiring direct evidence (rather than circumstantial evidence) of discrimination prior to allowing a mixed-motive jury instruction was nonsensical.  The Court stated:

"The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence'"

Inexplicably, the Eighth Circuit goes out of its way to parse words with the Supreme Court and ignore the obvious intent of Desert Palace:

"The Court in Desert Palace declined to address which opinion in Price Waterhouse was controlling, 539 U.S. at 98, or to revisit Price Waterhouse's interpretation of a statute, unadorned by § 2000e-2m, that prohibits discrimination "because of" an enumerated factor. Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable."

The Eight Circuit is militantly wrong on this one.  This decision creates a clear split in the circuits (See Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004)) so perhaps the Supreme Court will take the opportunity to make this point even more clearly than they did in Desert Palace.  (Hard to see what they could do in this regard short of issuing an opinion in picture form.)

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Senate Republicans Block Fair Pay Measure

Posted on April 24, 2008 by Christopher McKinney

Senate Republicans on Wednesday blocked a measure intended to overturn a Supreme Court decision limiting pay discrimination suits in a politically charged vote certain to be replayed in the presidential and Congressional campaigns.

By a vote of 56 to 42, the Senate fell four votes short of the 60 required to begin consideration of the Lilly Ledbetter Fair Pay Act, named for an Alabama woman who lost a case against the Goodyear Tire and Rubber Company when the court found she not did file her complaint in time. Ms. Ledbetter had been paid as much as 40 percent less than her male counterparts doing the same job, according to her allies.

The Republican senators made it clear that they believe it is OK to discriminate against women on the basis of pay. We respectfully disagree.

See our previous articles on Ledbetter here.

Source Article: New York Times

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Madison Square Garden of Discrimination

Posted on October 8, 2007 by Christopher McKinney

Last week a New York Knicks coach Isaiah Thomas was found liable for sexual harassment against a former colleague. The jury awarded $11,000,000.00 in damages against the team's owner and its chairman.

Madison Square Garden, which owns the Knicks, and MSG president James Dolan were ordered to pay the amount to Browne Sanders for allowing her to work in an actionable hostile environment. Ms. Sanders filed her lawsuit in January 2006, alleging that management failed to act despite her repeated complaints against Thomas' behavior. When Browne Sanders threatened to sue, the company suspended her and then fired her when her accusations were deemed groundless.

Following the verdict, Thomas insisted he was innocent, stating "I want to say it as loud as I possibly can. I'm innocent. I'm very innocent. . . . I'm extremely disappointed that the jury could not see the facts ... and I will appeal." The problem for Thomas and the Company, of course, was what Thomas had previously stated during his sworn deposition. Here is a clip:

I am assuming that Thomas is talking about different "facts" that the jury was not able to see.

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More on Ledbetter v. Goodyear Tire

Posted on May 31, 2007 by Christopher McKinney
Two law professors are carrying on a friendly discussion of the Supreme Court's recent decision in Ledbetter v. Goodyear Tire (for the basics of the Court's Ledbetter decision, go here).Ross Runkle of Ross' Employment Law Blog argues that the case was rightly decided for the reasons set forth in the majority's opinion.Paul Secunda, of Workplace Prof Blog, begs to differ, outlining his argument that the decision was wrongly decided here.Interestingly, the two appear to agree on the relevant question: Whether, under existing precedent [the Morgan case], is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment? If the former, cases like Ricks and Evans apply, and you can't depend on stale claims to give life to connected, but not independently discriminatory, claims. If the latter, you only need one event to occur in the relevant time period, and if each discriminatorily-infected pay check is seen as constituting such an event, the claim may be still timely even though many of the pay decisions and paychecks fall outside the statutory period.

Ross Runkle responds that Secunda and Justice Ginsburg's decent focus too much on the practical concern that it is unlikely a plaintiff will become aware that she is being discriminated against with regard to pay during the relatively short 180-day limitations period. He argues that this fact, which he allows may indeed be true, is not relevant to the analysis.

Their discussion highlights the importance of how an appellate question such as this is initially characterized. The majority characterized the case as a "pay setting" issue rather than simply a "pay" issue. By framing the issues in this way, the majority's answer seems only natural. But is that the correct way to set the issue? The discussion will certainly continue.

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Supreme Court Decides Ledbetter v. Goodyear: Past Discrimination Should Stay in the Past

Posted on May 29, 2007 by Christopher McKinney

Today the Supreme Court split 5-4 in rejecting a worker's claim of unequal pay, finding that the time for filing such a lawsuit under Title VII begins running with the original decision on a pay differential and ends 180 days later. The majority rejected the arguement that in pay cases there is no new violation each time a later paycheck is issued.

During most of the time that petitioner Ledbetter was employed by respondent Goodyear, salaried employees at the plant where she worked were given or denied raises based on performance evaluations. Ledbetter submitted a questionnaire to the Equal Employment Opportunity Commission (EEOC) in March 1998 and a formal EEOC charge in July 1998. After her November 1998 retirement, she filed suit, asserting, among other things, a sex discrimination claim under Title VII of the Civil Rights Act of 1964. The District Court allowed her Title VII pay discrimination claim to proceed to trial. There, Ledbetter alleged that several supervisors had in the past given her poor evaluations because of her sex; that as a result, her pay had not increased as much as it would have if she had been evaluated fairly; that those past pay decisions affected the amount of her pay throughout her employment; and that by the end of her employment, she was earning significantly less than her male colleagues. Goodyear maintained that the evaluations had been nondiscriminatory, but the jury found for Ledbetter, awarding backpay and damages. On appeal, Goodyear contended that the pay discrimination claim was time barred with regard to all pay decisions made before September 26, 1997--180 days before Ledbetter filed her EEOC questionnaire--and that no discriminatory act relating to her pay occurred after that date. The Eleventh Circuit reversed, holding that a Title VII pay discrimination claim cannot be based on allegedly discriminatory events that occurred before the last pay decision that affected the employee's pay during the EEOC charging period, and concluding that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions during that period, denials of raises in 1997 and 1998.

Held: Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter's claim is untimely.

In her dissent, Justice Ginsburg (joined by Justice Stevens, Souter and Breyer) stated:

The Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, insmall increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasonsfor those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environ-ment, is averse to making waves.

Pay disparities are thus significantly different from adverse actions "such as termination, failure to promote, . . . or refusal to hire," all involving fully communicateddiscrete acts, "easy to identify" as discriminatory. Citation omitted. It is only when the disparity becomes apparent and sizable, e.g., through future raisescalculated as a percentage of current salaries, that anemployee in Ledbetter's situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then currentand continuing payment of a wage depressed on account ofher sex.

Relevant Links:Court's OpinionPetitioner's BriefRespondent's BriefNational Employment Lawyers Assoc. Amicus BriefNPR Coverage by Nina Totenberg

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