Ruling bolsters job-bias victims

January 24, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- A unanimous Supreme Court gave workers who are victims of race, sex and age bias new protection yesterday against efforts by employers to find reasons to fire or demote them as a way of scuttling their discrimination cases.

Even if a company turns up misconduct that would have justified a worker's firing or demotion, that does not wipe out completely the worker's right to some remedy for the discrimination that has occurred on the job, the court ruled.

The ruling came against a background of intensifying efforts among many employers to do more extensive background checks on all workers, before they are hired or after they have been on the job, in order to get evidence to be used against them if they complain about job discrimination.

In the case the justices decided yesterday, a federal appeals court in Cincinnati ruled in late 1993 that an employer escapes all liability for a violation of federal job discrimination law if the employer later turns up valid reasons that would justify the action it had taken against a worker when it fired the employee or denied a promotion.

This evidence of misconduct, the appeals court said, has the effect of erasing the discriminatory action and leaves the worker with no right to any remedy.

Striking down that result, the Supreme Court said it contradicts the broad anti-discrimination goals of federal civil rights law. Those goals, the court remarked, are advanced when even a single worker proves that he or she has been the victim of on-the-job discrimination.

Such a finding, the court added, can point to a wider practice of discrimination or "entrenched resistance" to the law's nondiscrimination command.

Thus, it ruled that evidence an employer might develop during an investigation of a worker may be enough to let the worker's firing or demotion stand but that it does not eliminate the finding of illegal bias and thus does not rule out some award to the worker, such as back pay.

But the remedy cannot include reinstatement of a worker who has been fired if the later-acquired evidence would have been enough to justify firing earlier had the employer found it, the court said.

The court also said that the worker is not entitled to future pay based on any theory that if the firing had not occurred, the worker would have stayed on the job.

Judges, the court said, should begin with a calculation of back pay for a worker who has been a victim of job discrimination, running from the date of firing until the date the company learned damaging information that would have supported a firing.

After that, the court said, the judge may consider what other action to take to balance the interests of the worker with those of the employer. The court did not say what that other action might be, but it did stress that judges may not calculate a back pay award and then wipe it out completely because the company may have been wronged by the worker's misconduct.

The court noted that some workers worry that employers will routinely investigate all complaints of bias aggressively in order to learn damaging information about them in order to resist the complaints. That concern, the court said, "is not insubstantial."

But, it added, federal judges have the authority to award workers the recovery of their attorneys' fees if they win job bias cases and also have the power to punish company lawyers who engage in legally unnecessary maneuvers. Those, it said, "will deter most abuses."

The decision did not settle finally the case of a Nashville, Tenn., woman, Christine McKennon, a longtime secretary for a financial executive of the Nashville Banner Publishing Co. It sent the case back to a lower court to take the next step.

Ms. McKennon was fired in October 1990, and she claimed her discharge was due to her age: 62. The company claimed she was let go only in a reduction of its work force.

In investigating her discrimination complaint, the company found that she had taken home confidential company documents -- an action that would have been a firing offense if the company had known

about it before. Thus, the company said, it had a valid reason for firing her, so her discrimination complaint should go nowhere.

The Supreme Court did not decide whether she had a valid claim of discrimination or what must now be done about it. The case had never gone to trial because the original judge threw it out after the company learned of her misuse of confidential papers.

In a second case involving workers' job rights, the court agreed yesterday to decide, at its term starting in October, whether federal labor law protects the job rights of workers who seek or keep a job even if they are paid by a union to act as an organizer.

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