Key bias ruling issued for LV woman

By Liz Benston

Monday, June 9, 2003 | 11 a.m.

The U.S. Supreme Court today dealt a setback to U.S. corporations facing employment discrimination claims, using a Las Vegas case to tip the scales in favor of workers claiming bias on the job.

The court ruled against Park Place Entertainment Corp.'s Caesars Palace hotel-casino in upholding a jury award to a fired female employee who claimed she received harsher discipline than men.

The court ruled unanimously that in the type of discrimination claim the woman brought, she didn't have to provide "direct evidence" that her employer's actions were based on bias.

Federal job-bias law "does not mention, much less require, that a plaintiff make a heightened showing" of discrimination through direct evidence, in the sort of lawsuit filed by Catharina Costa, Justice Clarence Thomas wrote for the court.

The landmark decision departs from historical rulings on sex discrimination cases and is a wake-up call for employers, Costa's Las Vegas attorney, Robert Peccole Sr., said today.

"The employer is not going to have the upper hand in going to these trials anymore," Peccole said. "Employers, especially in the corporate world, have become very sophisticated in the way they can discriminate, they can do it because they know how to do it."

Courts have generally sided with employers who have argued that workers must meet a stricter burden of proof by showing "direct evidence" of sex discrimination, Peccole said.

"I've always felt that the U.S. Supreme Court should consider all evidence admissible just like any other case, that there should be no specific burdens from any other civil case."

Park Place spokesman Robert Stewart said the company was "disappointed" with the high court's interpretation. The court did not rule on any specific findings of fact in the case regarding the conduct of Caesars Palace or any of its employees, however, he said.

"It will have no financial impact on the Palace," Stewart said. "The impact will be on all employers in the country ... as they have to meet a higher standard in discrimination cases than we believe is reasonable."

"This puts the burden of proof on the employer to prove discrimination was not a factor," he said. "The burden should be on the plaintiff that discrimination was involved."

Costa, who works as a contract warehouse worker for the Las Vegas Convention Center, could not be reached by press time.

Lawsuits claiming job discrimination based on sex, race or other factors are the second-most numerous cases brought in federal courts behind inmate suits challenging their confinement, Caesars attorneys said in court papers filed in Washington, citing federal court statistics.

In friend of the court briefs filed during the case, attorneys said that success rates for employers run about 85 percent at trial and about 90 percent on appeal, Peccole said.

Caesars said Costa, fired in 1994, had a history of disciplinary problems and that lower courts should have required her to provide direct evidence that her firing was the result of sex discrimination.

Costa worked in a Caesars warehouse in Las Vegas from 1987 to 1994, driving forklifts and other heavy equipment. She was the only woman in her unit and a member of Teamsters Local 995.

The San Francisco-based 9th U.S. Circuit Court of Appeals said she presented "extensive evidence" at trial that she was disciplined more harshly than men, was granted overtime work less often and that supervisors let workers use sexual slurs against her.

She was fired after she claimed a male co-worker confronted her over a workplace dispute and shoved her against a wall, bruising her arm. The other employee at first denied there was a physical confrontation, then said she hit him, the appeals court said. The male employee received a five-day suspension.

A trial jury decided in Costa's favor, and the 9th Circuit upheld awards to her of $64,377 in back pay and $100,000 in compensatory damages.

The appeals court said Costa "was frequently warned and even suspended for allegedly hazardous use of equipment and use of profanity, yet other Teamsters engaged in this conduct with impunity."

Male co-workers received overtime but she was refused when she applied, according to the appeals court. A superior told her a man was chosen for overtime because he had a "family to support," the appeals court said.

Costa's suit was the type of discrimination case in which the employer may have had a legitimate reason to take action against her, the appeals court said.

The appeals court said that in such a case, once Costa showed that bias was "a motivating factor" for Caesars' actions, the company could avoid paying damages only by proving it would have fired her for legitimate reasons anyway. Costa didn't have to provide direct proof that her employer discriminated against her, the appeals court said.

Caesars had argued to the Supreme Court that other federal appeals courts required direct evidence of discrimination in such claims. The 9th Circuit's ruling put a heavier burden on employers, the company's lawyers said.

The Supreme Court agreed with the 9th Circuit.

A historic case involving a female accountant at Pricewaterhouse more than a decade ago set a precedent for how courts interpreted federal sex discrimination law.

The firm used sexual stereotypes in refusing a partnership position to the accountant, her attorneys argued. Various circuit courts came up with different interpretations of the law and the case eventually ended up in the U.S. Supreme Court, which determined that employees must offer "direct evidence" of discrimination in cases where multiple motives were involved.

That ruling strengthened employers' position because some circuit courts interpreted it to mean that workers couldn't use circumstantial evidence, only evidence that was seen, heard or witnessed first-hand, Peccole said.

After the Pricewaterhouse case, Congress amended the country's 1964 sex discrimination law. The amendment said workers could prove their case against employers if sex bias was a "motivating factor," and not just the only reason, for employer discrimination.