We, The Jury In a landmark age-discrimination ruling, the U.S. Supreme Court defers to the judgment of the jury.

The complex body of legislation, regulations and court decisionsknown as "the law" develops year by year, not in straightlines but in a moving tangle of zigzags. One role of the U.S.Supreme Court is monitoring the progress of the law on a multitudeof issues and making corrections where needed to keep the law on agiven issue from wandering too far afield.

That perspective helps explain the recent Supreme Court rulingin Reeves v. Sanderson Plumbing Products, Inc., which maymake discrimination lawsuits more difficult for employers to win.The case concerned allegations of age discrimination, but thecourt's ruling is likely to be cited nationwide in all kinds ofemployment discrimination claims, because it sets precedent on twoissues. First, the court reaffirmed the principle that it's upto the jury, not a judge, to listen to witnesses and judge theircredibility. That ruling will likely make it more difficult to getcases dismissed on summary judgment or overturned on appeal.Second, the court ruled that when an employer's stated reasonfor terminating someone in a protected class can be shown to befalse, the jury has the right to infer that the real motive wasdiscrimination.

"Reeves will be with us for a long time," saysemployment attorney Paul Salvatore of Proskauer Rose LLP in NewYork City. "It could tilt the balance toward employees bymaking it harder to overturn juries." Salvatore notes that, aswith any court decision, the significance of the ruling will dependon how lower courts interpret it. "But the court was sending amessage that, under the facts of the Reeves case, the judgeshould not be taking the role of the jury."

The case involved 57-year-old Roger Reeves, who had worked 40years for Sanderson Plumbing Products Inc., a manufacturer oftoilet seats and covers in Columbus, Mississippi. He and a youngerman, Joe Oswalt, supervised two production lines in an area calledthe Hinge Room. In summer 1995, Powe Chestnut, director ofmanufacturing and husband of company president Sandra Sanderson,ordered an audit of timesheets in the Hinge Room in response toreports that production was down because of absenteeism, tardinessand early departures. Both Reeves and the 45-year-old Hinge Roommanager, Russell Caldwell, were subsequently fired, Chestnut latertestified, because of timekeeping errors and misrepresentations bythe manager and both supervisors. Reeves sued, claiming the realreason was age discrimination.

The company asked the district court to issue a summary judgmentin its favor, which would dismiss the case. The court ruled thatReeves was entitled to a jury trial. At the trial, Reeves showedevidence that there really weren't any misrepresentations andtimekeeping errors that he was responsible for, and that Chestnuthad told him earlier that he was "too damned old" to dothe job and he "must have come over on the Mayflower."The younger supervisor testified that Chestnut routinely singledout Reeves for harsh treatment. Deciding that the allegedrecord-keeping errors were just a pretext for terminating Reevesbecause of his age, the jury awarded Reeves roughly $100,000 indamages. But when the company appealed, the Fifth Circuit U.S.Court of Appeals overturned the decision. The appellate courtexplained that even if there was sufficient evidence to find thatthe company's explanation was just a pretext, that didn'tprove that Reeves was fired because of his age.

Under rules of evidence established by the U.S. Supreme Court,plaintiffs in an age-discrimination case first must establish aprima facie case: that they were over 40 years old, that they werequalified for the job, that they suffered an adverse employmentaction such as being denied a job or being fired, and that theemployer subsequently hired someone younger to fill the job. Thenthe employer has to provide a legitimate, nondiscriminatory reasonfor its decision. After that, the burden of proof shifts back tothe plaintiff to show that the employer's stated reason ismerely a pretext for discrimination.

In recent years, the Fourth and Fifth Circuits have reversednumerous jury verdicts in employment-discrimination cases. Inaddition to showing that a given employer's reason was apretext, judges in these circuits have ruled that the plaintiff hadto show direct evidence that the employer's motivation wasdiscrimination. Other circuits have deferred to the jury in thesecases. To settle the matter, the U.S. Supreme Court agreed to hearthe case. On June 12, the court issued its ruling, declaring theappellate court in error and restoring the jury's verdict."The Court of Appeals impermissibly substituted its judgmentconcerning the weight of the evidence for the jury's,"wrote Justice Sandra Day O'Conner in her opinion. The SupremeCourt ruled that, given the indirect evidence of age bias, thestrong evidence that the company's stated reason wasn'ttrue gave the jury the right to assume the real reason wasdiscrimination.

"Reeves is important because it allows adiscrimination plaintiff to prove discrimination through negativeinference," says Ann Elizabeth Reesman, a practicing attorneywith McGuiness, Norris and Williams LLP in Washington, DC, whosubmitted a friend-of-the-court brief in the case for the EqualEmployment Advisory Council, an employers trade group. "If theproffered reason is false according to credible evidence, the juryis entitled to infer discrimination."

Reesman notes that this reasoning doesn't apply to cases inwhich the former employee disagrees with the reason fortermination, or where the employer actually believed the plaintiffwas guilty of an infraction that he turned out not to be guilty of."The employer's reason can be false without being alie," she explains. But, as the court stated, "once theemployer's justification has been eliminated, discriminationmay well be the most likely alternative explanation, especiallysince the employer is in the best position to put forth the actualreason for its decision."

Just as important is the way the ruling reaffirmed the roles ofjudge and jury: The judge's job is to determine the law, butit's up to the jury to weigh the evidence and decide whathappened. Paul Mollica, an attorney with Meites, Mulder, Burger& Mollica in Chicago, expects fewer summary judgment motions,which ask judges to read through hefty stacks of documents todecide whether there are enough facts in question to warranttrials. Mollica predicts that close cases will go to trial, whileemployers facing damning evidence will settle. "Before, evenpeople with meritorious cases were getting knocked out at summaryjudgment," he says. Employers who lose at trial may be lesslikely to appeal now that appellate courts have been told to stopsecond-guessing juries.

Steven C. Bahls, dean of Capital University Law School inColumbus, Ohio, teaches BIZ Experiencesship law. Freelance writer JaneEaster Bahls specializes in business and legal topics.

One Step Ahead

So what's the message for employers? Do all you can to avoidemployment lawsuits, Salvatore advises. "Have proactive,enlightened human resources policies and training formanagers," he advises. "Establish meaningful complaintprocedures and investigate complaints so people don't feel theyhave to go outside to get redress." He also advises mediationor even arbitration of employee disputes to resolve problems beforeemployees get mad enough to sue.

When you have to terminate someone, Reesman advises, thinkcarefully about your reasons, and be sure you can document them."Make sure you're making the personnel decision for theright reason, and that it would stand up undercross-examination," she says. "Cross-examine your reasonsbefore somebody else does."

Contact Sources

• McGuiness, Norris & Williams LLP, www.eeac.org
• Meites, Mulder, Burger & Mollica, (312) 263-0272,pwmollica@mmbmlaw.com
• Proskauer Rose LLP, psalvatore@proskauer.com,www.proskauer.com