Jottings By An Employer's Lawyer

Sunday, August 17, 2003

Desert Palace v. Costa - How It Will Make A Difference

Since the Fourth Circuit is generally a favorable forum for employers, its decision in Rowland v. American General Finance, Inc. (4th Cir. 8/12/03) [pdf] may well be a harbinger of how the revival of the mixed motive discrimination case by the Supreme Court in Costa earlier this summer may change discrimination litigation. Here the court waited on the Costa decision before reversing the jury verdict in favor of American General because the court had not given the requested mixed-motive instruction. Although you could argue that the plaintiff had submitted direct evidence of discrimination that would have entitled her to such an instruction even under the standard used prior to Costa, it is quite clear that the Fourth Circuit views the Supreme Court's decision as a significant change in how cases must be viewed. Although warnings of dire consequences of decisions occur far more often than do the consequences, this time may be different.

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