5335 Wisconsin Avenue, NW, Suite 440, Washington, D.C. 20015 Tel: 202-895-1506   Fax: 202-318-0798 E-Mail: lgoldsmith@goldsmithfirm.com The Supreme Court Considers: How Much Proof Should It Take To Bring A Discrimination Case To A Jury? By: Leizer Goldsmith Should a jury be allowed to decide if age discrimination has occurred, when, before the termination, the boss told the fifty-seven year old fired employee that he was: "too damn old to do the job"? That's an essential issue in an employment discrimination case recently heard by the United States Supreme Court, and which should be decided within the next month. The case, Reeves v. Sanderson, has received little publicity from the non-legal press, but because of its likely effect on the working conditions of all Americans, everyone should care about the outcome of this case. Roger Reeves was fifty-seven years old and had been employed by Sanderson Plumbing Products for forty years when he was fired in 1995. According to Reeves, just months before the firing, the Director of Manufacturing-- who later became the company president's husband-said that Reeves: "was so old that he must have come over on the Mayflower," and that Reeves was "too damn old to do the job." Sanderson admitted that the Director was one of the persons who recommended Reeves' firing. Reeves sued, alleging that he was a victim of age discrimination in violation of the Age Discrimination in Employment Act. A jury awarded him $35,000, which the trial judge then nearly tripled. Sanderson won on appeal, and the case is now before the United States Supreme Court, which is deciding if there was sufficient evidence for a jury to conclude that Reeves was fired because of his age. The Reeves case offers the Court a chance to clarify the law on two key questions. The first is whether proving discrimination will require proof of a confession or "admission" of discrimination by the employer. Under the law as it has been understood until recently, all that has been required is that, once circumstances have been suggested and a reasonable jury could be convinced, that an employer's stated reasons for acting against an employee are lies, a jury is permitted to reach a verdict and to find that intentional discrimination has occurred. The second question is whether a statement by the employer such as "you're too damn old to do the job," is sufficiently relevant to deciding whether there has been discrimination, that such a statement compels judges to allow juries to play their customary role as judges of the facts. The outcome of this case may have a profound effect on workplaces around the country. Traditionally, employers would have been advised by their lawyers that they could be held liable for intentional discrimination if, for example, they fired a minority employee and gave an explanation for their action that was proved to be false. Presumably, this body of law may have influenced employers to be more sensitive to concerns that their actions might be discriminatory. In some parts of the country, federal courts have already been interpreting the law in the more restrictive, pro-employer way. The result is that employees are losing much more often when they attempt to sue for intentional discrimination in those areas. It is fair to assume, I believe, that as employers become less concerned about being sued for intentional discrimination, they will become more likely to discriminate. If Sanderson wins the Reeves case, it will become much harder to sue for intentional discrimination in the remainder of the country that is not already subject to the stricter rules of proof. That means it will also become easier to discriminate. If the Court were to go as far as to label: "too damn old to do the job" as evidence unhelpful to determining whether there to allow a jury to reach a verdict, such a decision would send an extremely chilling signal to employees to the effect that intentional discrimination was being legalized by the Supreme Court. On the other hand, if Reeves wins with sufficiently strong language from the Supreme Court in its opinion, employees would be permitted to attempt to convince juries that discrimination has occurred, by appealing to jurors' general insight and asking them to believe that discrimination must have occurred, once the jurors have been convinced that the employer is lying and covering up its real motivation. This should have the effect of reducing the amount of intentional employment discrimination in society, and on your job. As I watched the oral argument in Reeves earlier this year in Washington, I interpreted the questions and comments offered by Justices Breyer, Ginsburg, Stevens and Souter together with my knowledge of their past rulings, as indicating that they will likely side with Reeves on both of the key questions in the case. Just seven years ago, the five other Justices presently on the Court all ruled in a similar case, that juries may find discrimination even without direct confessions or "admissions" of discrimination, when the employer's stated reason for its action is proved false. Nonetheless, I fear that at least one of those justices, Justice Scalia will alter his approach and rule in Sanderson's favor on that point. I would not be surprised to see Justices Rehnquist and Thomas do the same. The key remaining votes are those of Justices Kennedy and O'Connor. Since I believe that at least one or the other will vote with the four more liberal justices, I predict that unless the Court comes up with a way of sidestepping these big issues, Mr. Reeves will win. This would be big victory for discrimination victims, and employees more generally. I will certainly report on the outcome of this extremely important case, as soon as the Court issues its decision.