THE SPORT OF KINGS MAY YIELD A PAUPER'S PURSE

by Stuart H. Brody, Esq.

 Everyone knows--employees and employers alike--that employment-related litigation is on the rise. The largest increase has been in the arena of employment discrimination, which includes sex discrimination (including sexual harassment), age, race, national origin and disability discrimination.

 There are several reasons for this trend: first, Congress recently increased the rewards of winning such suits. The civil rights laws, which used to limit remedies to reinstatement, back pay and attorneys fees, were recently amended to allow compensatory damages (pain and suffering) and punitive damages. In many cases, these damages far exceed back pay.

 Also, administrative agencies, such as the federal Equal Employment Opportunity Commission, and state agencies, such as the State Division of Human Rights in New York, process complaints, free of charge. These agencies offer aggrieved employees a way to get their legal attack off the ground.

 Perhaps the most important reason for the proliferation of discrimination litigation is the large size of publicized awards. It is often said that litigation is the sport of kings, yet, lawsuits by common workers have indeed fetched a king's ransom. Just last month, a jury in California awarded a woman nearly $7 million in punitive damages against the law firm that had employed her.

 In the face of these new monetary remedies, hospitable government agencies and eye-popping judgments, you might conclude that the tide is turning in favor of the American worker in his or her search for justice. Well, in fact the opposite is true. It is harder and harder to win these lawsuits. Why is this so? Why is it so hard to seek justice under the discrimination laws?

 First, although federal and state agencies are available to entertain complaints, staff shortages and cumbersome processing procedures have brought these agencies to the brink of collapse. The Equal Employment Opportunity Commission is more efficient than the State Division of Human Rights, but it still only agrees to represent charging parties in less than 1/2 of one percent of the cases filed. Even where the Commission agrees you have a good case, they only rarely agree to represent you. The State Division of Human Rights will handle every case it concludes has merit, but the delay in processing the matter to hearing can be as much as four years. (We are not exaggerating.) But, perhaps the most significant yet underrated difficulty in obtaining justice is getting through the complex requirements of proof that may turn your day in court, into a nightmare.

 We are going to take you now on a guided tour of the Byzantine rules of proof and shifting burdens in a discrimination case--matters so complex and subtle that the Supreme Court has felt compelled to deliberate on the issues five times in recent history. Let's take a look at why.

 If you proceed to court, having survived the long and costly pre-trial discovery process, your next hurdle is to prove that you have a prima facia case. This is a technical term that means setting forth the basic elements of the case. A prima facia case is the gateway to a full-blown trial upon which your victory depends. If you can prove the basic elements, you get to move on to the next step. If you don't, it's thrown out. What must you show? In most cases, you must only show: 1. that you are a member of a "protected class" (for example, black, a female, over 40 years old, disabled); and 2. that you are qualified for the job you were denied (either passed over for hire, denied promotion, or terminated.

 You may be encouraged reading this; you can see that establishing a prima facia case is not difficult. For example, if you are over 40, were terminated and replaced by a younger employee, you have made out your prima facia case. If you are a woman, and a male co-worker in the same job routinely gets better assignments, you have proved your prima facia case. If you are a qualified mobility-impaired applicant for a job and were denied hire in favor of someone with no disability, you have made out your prima facia case. You have passed the first hurdle. You now get to move on to the next stage.

 Now the employer takes the stand and states its case. Just as your burden of showing a prima facia case was not difficult, neither is the employer's burden at this stage. The employer does not have to prove that it did not discriminate, it simply has to put forward a non-discriminatory reason for taking the action it did. In our hypothetical case involving the employee over 40, the employer may say for instance, that it chose the younger employee because he possessed technical expertise expected to be used in an expanded job description. In the sex discrimination case, the employer only has to say that the performance deficiencies of the female prohibited her handling assignments given to the male. In the case involving the disabled employee, the employer may simply say the non-disabled employee was more qualified. Now, here is where matters start getting complicated.

 Once the employer states its reason for taking action against you, the burden in a discrimination case shifts back to you. You now have to prove that no matter what the employer said, the real reason was a discriminatory one. How do you do this? Well, the logical way is to show that the employer is lying: for instance, that the real reason the older employee was passed over was to weed out highly paid (older and longer tenured) employees, that the performance deficiencies of the female did not exist, that the qualifications of the non-disabled employee were exaggerated. In other words, you've busted their case wide open, right? Wrong.

 Last year, the Supreme Court ruled that merely showing that the company is lying does not prove that its actions were motivated by discrimination. Lying is not the same as discrimination, and a company does not forfeit its case by lying. The Court held firm to the view that the burden of proving discrimination must always rest with the plaintiff, even in the face of the employer's lie. Accordingly, you have to prove that discrimination was the real motivating reason.

 This is very difficult. Plaintiffs almost never have direct evidence of discrimination--the so-called smoking gun. So what must you do. The only thing you can do is prove that no reason but discrimination could plausibly exist for the action taken. Essentially, you have to disprove any other imaginable reason. This could be very difficult, because even if you disprove all reasons except a solely discriminatory one, you still may not prevail.

 Let's take a look at how this might work. You are 62 years old, with 30 years tenure and well paid, having collected the typical merit and longevity raises along the way. You do your job with creativity and that special insight borne of long experience. Your employer decides to terminate you in favor of a younger person, with three years of experience, earning 50% of your salary. In court, you subpoena documents from other divisions of the company showing a pattern of younger, "cheaper" employees similarly substituted for older ones. The judge, however, grants the employer's motion to deny those documents, calling it a fishing expedition and irrelevant.

 You get lucky though, and one of your sources provides you with an internal memorandum from a Senior Vice President stating that the company must find a way to alleviate the cost burdens of long-tenured employees. However, the employer takes the stand and while he concedes that older employees were disproportionately affected by the cost-cutting, the company's motivation for the cost-cutting was purely financial. The company concedes the pervasive coincidence of age and salary but says it is, well, merely coincidental.

 Now you have the employer admitting discrimination based on pay. Doesn't that mean it discriminated on the basis of age? Is it not logical that choosing lower salaried employees inherently discriminates against older employees. Don't pay increments normally accompany longevity? The Supreme Court said that this pattern is not necessarily discriminatory, because, theoretically, the company could hire an inexperienced older person and start him or her at the lower salary. Although the company has never done this, you cannot prove they would not. Based on these facts, you would probably lose.

 How could you rescue the situation? You might carry your burden of proof by showing that the employer never offered the job to the older employees at a reduced salary. From this, the jury might reason that age discrimination, rather than cost-cutting was a real reason for the company's action. You have proven more than just the company is lying. You have proven that no reason except discrimination explains the company failure to restructure the jobs at lower pay rather than simply hiring younger people. As you can see, victory depends on tenacity, inventiveness and, a bit of luck with the jury.

 Where does this leave you? Obviously many people do win their lawsuits. This article is not designed to discourage you. It is intended to highlight the critical value of a careful assessment of your claim before you do legal battle. Keep in mind that American law provides no protection against stupid, careless or unfair decisions, just certain discriminatory ones, so you must resist your impulse to sue when your heart and head tell you the employer's action was not discriminatory under the law.

 If you do suspect discrimination, a consultation with an attorney is well worth considering. With competent counsel, you can put your facts through the rigorous tests of proof that will occur in court. More than one fine case has been proven on a calculated hunch and a lucky break, but we emphasize that calculation means careful identification of a strategy, not a passion to get even. Once you decide to go for it, you should be encouraged to hear that juries often have little patience for the niceties of proof. The fine threads of judicial logic may have little influence on a jury's practical sense of justice. That practical sense may just know when lying is indeed a mask for discrimination.

Send mail to the author, brody law@capital.net.