Eighth, and final, Journal Summary for Upcoming Publication of ASU Law Journal

THE GROSS BEAST OF BURDEN OF PROOF: Experimental Evidence On How The Burden of Proof Influences Employment Discrimination Case Outcomes.

David Sherwyn & Michael Heise

David Sherwyn is an Associate Professor of Law at Cornell University School of Hotel Administration, and Michael Heise is a Professor of Law at Cornell Law School.  A summary of, including excerpts from, their forthcoming Article in the Arizona State Law Journal is provided below.

Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court’s 2009 decision in Gross v. FBL Financial Services Inc. Although Title VII, the ADEA, and the ADA prohibit employers from discriminating because of certain characteristics protected by the statutes, the statutes do not explain how parties prove their case, which side has the burden of proof, or how much, if any, discrimination is tolerated. Thus, the methods, burdens, and standards of proof were developed by the courts in a series of Supreme Court and lower court decisions, modified by Congress in the CRA of 1991, and then subsequently refined by Costa, Gross, and a host of lower court decisions. Gross created different standards for Title VII cases and non-Title VII discrimination cases. The authors argue in their Article that differing burdens of proof produce different results—regrettably perm.

McDonnell Douglas is the standard in all ADEA, ADA, and some retaliation cases. In Title VII cases, courts, with no real guidance or standards, can choose whether to apply the McDonnell Douglas or motivating factor standard. The differing burdens of proof produce different results. If there was a legitimate rationale for the different burdens, the altered result would not only be acceptable, it would be desired. However, an experiment conducted by the authors shows that this is not the case. The results suggest that while the outcomes involving employer liability are comparable, plaintiffs in cases with a motivating factor jury instruction were significantly more likely to receive litigation costs and attorney fees than plaintiffs in cases with the pretext jury instruction. In “fee cases,” the costs and fees sometimes exceed the potential damages available to the plaintiff. Thus, the employer is far more concerned with fees than potential damages, and employers have a significant economic interest in attempting to settle cases and minimize fees. The authors argue that differing burdens effectively discriminate against ADEA (and possibly ADA and retaliation) plaintiffs by excluding them from the Title VII windfalls that favors employees over employers (who have incentive to settle Title VII “fee cases”).

To solve this problem of differing results, Congress has proposed a bill, the Protecting Older Workers Against Discrimination Act, House Bill 3721 (H.B. 3721), to overturn Gross and hopefully solve the burden of proof problems associated with discrimination law. However, the authors identify four problems with this proposed legislation. The authors argue that the simplest solution is to return to the standard provided in Price Waterhouse, which provided that plaintiffs may satisfy their burden by proving that discrimination was a motivating part of the termination decision. Employers can absolve themselves of liability if they can prove that the decision in question would have been made regardless of the protected class. The authors argue that overturning Gross will put all discrimination cases on equal ground. Second, the authors argue that letting plaintiffs choose whether to use the motivating factor jury instruction will not only end the legal fiction of letting judges decide facts, it could make cases easier for plaintiffs to prove.

Be sure to read Sherwyn & Heise’s entire Article in the upcoming Arizona State Law Journal Fall Issue.