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Following a 2003 U.S. Supreme Court decision, employers face the prospect of fighting employment discrimination cases that they cannot afford to win. A decision involving Caesars Palace held that based on a 1991 federal statute, a complaining employee need not give direct evidence of discrimination as part of the complaint. This is a change in the treatment formerly given to the so-called mixed motive concept, in which a personnel decision regarding an employee who is part of a protected class may be motivated by both legitimate business considerations and discrimination. In addition to apparently shifting the burden of proof, the federal law provides for jury trials in discrimination complaints. Because such trials involve considerable legal expense, employers who choose to litigate such cases may “win” but be impoverished by the resulting legal bills. The concern in such a situation is that employers may find themselves subject to inappropriate discrimination suits.


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