In Carey v. Mt. Desert Island Hospital, 156 F.3d 31 (1st Cir. August 18, 1998), the First Circuit Court of Appeals affirmed a judgment for about $310,000 for a man who proved he was discriminatorily discharged because of his sex by his former employer. The main legal issue addressed by the Court of Appeals concerned the specific wording in the trial court's jury instructions about the burden of proof in a circumstantial evidence sex discrimination case. That legal issue is of little interest to most employers, but the case is nevertheless very instructive to employers on many matters.

     1. Sex Discrimination Lawsuits Brought By Men

     Lawsuits by men for sex discrimination are rare, but this case proves that a man can bring and win a sex discrimination lawsuit. The law against sex discrimination is most frequently invoked by women, of course, but the law is available to remedy sex discrimination against men, too. Most employers need not take any special actions to avoid lawsuits by men for sex discrimination. Ordinary fair and documented employment procedures should be enough to protect most employers from any sex discrimination claims brought by men. However, employers who are dominated or controlled by women or who have a special focus on women employees or clients should take extra precautions to make sure that all employment procedures and decisions are free of sex discrimination.

     2. Use Progressive Discipline

     There was much conflicting evidence in the Carey case. The hospital claimed that it discharged Carey for his poor performance in his job, and it introduced evidence to prove that, in fact, Carey's job performance was poor. In the end, the jury found by a preponderance of the evidence that although Carey was not a perfect employee, he had worked in his job with adequate success for three years before he was fired, and his imperfections were just used as an excuse to discharge him because of his sex. The key evidence in support of Carey's claim was this: (a) Carey was terminated rather abruptly for continuing relatively minor problems in his department and with his work, (b) Carey's superior (the CEO) "did not give him any advance warnings of serious trouble despite earlier assurances that she would inform him if she had problems with his job performance, and [there was an absence] of any effort to institute 'progressive discipline' or corrective action, as was the general practice, before dismissal," and (c) "Carey, when facing performance problems, appears to have been treated differently by [the CEO] than were [three women]. . . All three women had encountered problems in their jobs and were given 'progressive discipline,' i.e., assistance and time to take corrective action, rather than prompt termination." Thus, this was a classic sex discrimination case: an imperfect employee abruptly discharged without progressive discipline while other employees of the opposite sex received progressive discipline. There is no law that says that an employer must use a progressive discipline system, but prudence dictates that an employer should fairly and consistently use such a progressive discipline system in order to avoid employment discrimination claims. Certainly, if an employer uses progressive discipline with some employees for some types of misconduct, the employer should use progressive discipline with other similarly-situated employees for similar misconduct.

     3. Evidence In Discrimination Cases

     All employers need to understand the very broad scope of evidence that may be introduced against an employer in a discrimination case. Frequently, a claimant may be allowed to introduce evidence having nothing to do directly with (a) the claimant himself or herself, or (b) the decision- maker. For example, in the Carey case the employee was discharged in June, 1994 by a CEO who started work for the hospital only in September, 1993, but the trial court allowed the claimant to introduce evidence of events or comments which occurred long before September, 1993, and which had nothing to do with the CEO. The Court stated: "While an employer should not find itself in jeopardy by reason of occasional stray remarks by ordinary employees, circumstantial evidence of a discriminatory atmosphere at a plaintiff's place of employment is relevant to the question of motive in considering a discrimination claim. . . . Evidence of corporate state-of-mind or a discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or timeframe involved in the specific events that generated a claim of discriminatory treatment." In particular, statements or actions of friends or close associates of a decision-maker may be introduced into evidence to show the decision-maker's state of mind.

     What can management do about this? Answer: (1) Promptly correct or expressly disavow any improper comments or actions of which management becomes aware. (2) Have and enforce clear written policies prohibiting discrimination. (3) Train managers and employees to avoid discriminatory actions and comments and to understand that anything they say or do may be used against the company later, even in an unrelated matter. (4) Have a grievance or complaint procedure employees can use to raise questions or complaints about possible discriminatory actions or comments.

     4. The Defense Of Failure To Mitigate Damages

     A victim of employment discrimination has a duty to mitigate the damages caused by the discrimination. A failure to mitigate damages will result in a reduced damages award to the victim. The Court in the Carey case stated: "Carey was entitled to recover [back pay] for what he would have earned absent the discharge, reduced by any compensation that he actually received and any additional amount that he would have received through reasonable efforts to mitigate the damages, with the employer bearing the burden of proof on the issue of mitigation. . . . [The hospital showed] through expert testimony and evidence concerning the actual number of applications made relative to the number of positions available that Carey did not exercise reasonable diligence in seeking comparable employment. [His back pay award was properly reduced] for failure to fully mitigate damages and . . . by the amount of money Carey earned or received in umemployment during the relevant period." Failure to mitigate damages is a defense commonly asserted by employers against claimants in employment discrimination cases. As the Carey case shows, an employer serious about this defense must do more than just assert it, the employer must prove the defense with specific, probative evidence.

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger, Esq. and the reader. All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: January, 2000
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