Last month the U.S. Supreme Court issued an opinion further clarifying the rules courts must use in deciding employment discrimination cases. The Court's decision, Reeves v. Sanderson Plumbing Products, Inc., also underscores the need for employers to adopt anti-discrimination policies and to ensure, through training, that they are understood and followed.
Federal and state statutes both provide that, in making employment decisions, employers may not intentionally discriminate based on an employee's race, gender, age or other protected characteristics. An employer's motive is the crucial issue in such cases, but how can a prohibited motive actually be proven? Since 1973, following the Supreme Court's guidance, lower courts have used the following framework. The plaintiff employee must first make out a "prima facie" ("apparent") case that he or she was treated adversely because of a protected characteristic. Once the plaintiff does so, the employer must offer evidence of its reasons for the challenged action. The employee must then prove that the employer's proffered reasons are not credible, but are a mere "pretext" for intentional discrimination.
In the Reeves case, the former employee made out his "apparent" case of age discrimination by proving he was 57 years old, he was qualified for his job as a supervisor, he was discharged, and the employer then successively hired three person in their thirties to fill his position. To rebut the inference of age bias that resulted from this showing, the employer offered evidence that it terminated the plaintiff employee for legitimate business reasons. The plaintiff had been placed on probation for poor performance and was later terminated, along with his own immediate supervisor, for failing to keep accurate attendance records for the employees he supervised. To demonstrate that the employer's reasons were pretextual, the plaintiff offered evidence that his record keeping was reliable. He also testified that the employer's director of marketing told him that he "was so old he must have come over on the Mayflower" and, when he was having difficulty starting a machine, that he "was too damn old to do the job." A former co-worker of the plaintiff also testified that this manager treated the plaintiff "in a manner you would treat a child when you are angry with him." Even though the employer pointed out that the manager was only one of three who recommended that the plaintiff be terminated, and that both persons who actually made the decision to terminate the plaintiff were themselves over 50 years old, the jury found pretext and returned a verdict for the plaintiff.
An appeals court reversed, finding the evidence of age discrimination legally insufficient. The Supreme Court ultimately upheld the jury verdict, however, ruling that if the jury could have reasonably disbelieved the employer's proffered reasons, the lower court could not, under the guise of legal review, substitute its own judgment for the jury's on the weight of the evidence.
While it is not clear exactly what evidence persuaded the Reeves jury, the facts of the case illustrate how "bad behavior" by a single employee, even one who does not make the final termination decision, may undermine an employer's explanation of its decision. The Reeves decision provides another example of why employers should adopt effective anti-discrimination policies and train their managers in how to apply and enforce them. The Supreme Court ruled in 1998 that unless employers adopt policies against sexual harassment, including an effective employee complaint procedure, they can be held strictly liable for supervisory sexual harassment. The Reeves case is a reminder that anti-discrimination programs can be crucial in defending other types of discrimination claims as well.