Circumstantial evidence is sufficient to establish sexual discrimination

Workforce, Sept, 2003

CATHARINA COSTA WAS THE ONLY FEMALE warehouse worker at Caesars Palace Hotel and Casino of Las Vegas, Nevada. During her employment, she experienced a number of problems with management and other coworkers, including allegations that one of her supervisors had "singled her out for intense stalking." Eventually, she was terminated for poor performance and after a physical altercation with an alleged sexual harasser.

She sued Caesars for both sexual harassment and sexual discrimination under Title VII and was awarded damages. Caesars appealed the judgment, arguing that the Nevada district court had given an improper "mixed-motive discrimination" instruction to the jury i.e., when both legitimate and illegitimate reasons motivate a decision to terminate, discrimination cannot be proved by circumstantial evidence alone.

On behalf of a unanimous U.S. Supreme Court, Justice Thomas declared, "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." The Court ruled that the judgment for Costa would stand even though the only evidence she had to support her claims was that she was punished more severely than her male coworker for the same fight, she was not assigned overtime as frequently as male employees and the company often tolerated sex-based slurs against her. Desert Palace, Inc. v. Costa, 537 U.S. 1009 (6/9/03).

Impact: Employers are advised that mixed-motive discrimination cases can be won on circumstantial evidence alone.

D. DIANE HATCH, PH.D., is a human resources consultant in San Francisco. JAMES E. HALL and MARK T. KOBATA are attorneys with Barlow, Kobata & Denis. (offices in Los Angeles and Chicago.)