Age Is Motivating Factor, But Employer Prevails On Affirmative Defense, No Attorneys Fees
by Michael Fox
One of the fears of employers after the Supreme Court decision in Desert Palace v. Costa was that plaintiffs would be entitled to attorneys fees if they took a mixed motive case to trial and won on the question of a motivating issue, notwithstanding the employer might prevail on the affirmative defense that they would have taken the same action. Although not dealing with federal law, Burgmann Seals America, Inc. v. Cadenhead (Tex. App. - Houston [1st] 2/19/04) [pdf] rules that out for TCHRA claims. Cadenhead convinced the jury that age had been a motivating factor in his not being promoted to President of the company, but the jury also found the company would have taken the same action anyway. The trial court used those findings to support an award of attorneys and expert witness fees. Relying on the Texas Supreme Court decision of Southwestern Bell Mobile Systems, Inc. v. Franco , the Court reversed and rendered since plaintiff did not recover any meaningful relief for his age claim.
If the same holds true for motivating factor cases under federal law, it will be great for employers; even if not, it will be another drawback to plaintiffs filing under the TCHRA and keeping venue in the state courts, as opposed to filing under Title VII thus permitting the case to be removed to federal courts. Either way, employers seems destined to get some benefit.