Volume XIV, Issue VI
November/December 2000

Dear Editor,

As a defense-side employment lawyer with Dorsey and Whitney, I'm somewhat disturbed by the front page article ["Correcting a Supreme Mistake" September/October 2000] written by Mr. Hymans (who I do not know) about the recent Supreme Court case and age discrimination. His analysis, although accurate in some aspects, is way off base, and gives people (plaintiff's especially) the idea that if they can show that a proffered reason for their termination is not true, they are somehow entitled to win their case. This is simply not accurate. The analysis is quite exaggerated. Does Mr. Hyman even practice employment law?

I have never written a letter before to this publication, but was somewhat horrified by his article, and the part that was set out on the front page. It is extremely misleading, although I'm sure well-intended.

Gwynne Skinner
Dorsey & Whitney LLP

Dear Editor:

Compliments on two of your articles in the September / October 2000 De Novo. Both "Correcting a Supreme Mistake" and "Sticks and Stones" were excellent and useful. Keep up the good work!

Blake Barnes
Littler Mendelson, PC
Seattle

Dear Editor:

Re: Geoffrey Hymans' opinion of Reeves v. Sanderson Plumbing

Last month's DeNovo was dominated by Geoffrey Hymans' diatribe against 25 years of employment discrimination law. Mr. Hymans, Federalist Society Chapter President and Counsel for the Washington State House Republican Caucus, is entitled to his opinion. However, he clerked for the Judge who wrote the "pretext plus" opinion about which he writes, Hill v. BCTI, 97 Wn.App. 657 (2000), and he now uses De Novo, rather than the amicus process, as a vehicle to urge the court to sustain this plainly wrong decision. We disagree that this is the proper forum, and we certainly disagree with his polemic.

After the Washington State Supreme Court accepted review of the Hill decision, the United States Supreme Court, in Reeves v. Sanderson Plumbing, 120 S.Ct. 2097 (2000), unanimously overturned a panel of the 5th Circuit that reached the same result as Hill. The thesis of the Hymans article is that the US Supreme Court was completely wrong in rejecting the 5th Circuit's (and by extension Hill's) analysis of discrimination law. Hymans calls on the State Supreme Court to "correct" the mistake. But the only mistake was the Hill ruling. It is inconsistent with State Supreme Court authority, and violates the liberal construction of discrimination law mandated by RCW 49.60.010.

More to the point, we question the propriety of an arm of the WSBA running an article by the possible author of a judicial opinion that just last week was argued before the State Supreme Court. It was Mr. Hymans' admitted intent to influence the Washington Supreme Court's consideration of Hill. By producing an article that will be read by many of the court's law clerks, DeNovo is supporting that partisan effort. The impropriety is heightened by the fact that Mr. Hymans clerked for the Judge who wrote the opinion, and may well have written the opinion himself. It is our hope that in the future the WSBA and DeNovo will more carefully consider complicity in such a scheme. We take heart, however, because the Hill decision is so clearly inconsistent with both state and federal law, and because we believe that Mr. Hymans' views are so extreme and his examples so distorted that his article should have the opposite effect intended.

A central issue in many cases of employment law is intent. Evidence of discrimination, whether individual or company-wide, is often circumstantial. This is in part because enforcement of anti-discrimination laws has educated violators. "While discriminatory conduct persists, violators have learned not to leave the proverbial smoking gun behind." Aman v. Court Furniture, 85 F.3rd 1074 (3rd Circuit 1996).

Mr. Hymans clearly believes that discrimination in our society is now a rarity. Let me assure you that we and our clients strenuously disagree. It has gone deeper underground since the McDonnell Douglas decision. We do not survive as plaintiff's employment discrimination lawyers by frequently pursuing claims based solely on inconsistencies in an employer's articulated reason for adverse actions, even when those actions are taken against a satisfactorily-performing worker. In some cases, however, such action is appropriate.

As a law school professor of mine was fond of saying, sometimes there is 'the smell of the rat.' These intangibles may not count for much in the mind of a busy jurist unused to discrimination. But the plaintiff, her lawyer, and the jury may find the answer clear. A lie, and nothing more, does not mandate a plaintiff's verdict, as Mr. Hymans implies at some points in his article, but a lie is enough to take the case to the jury. This is because in many cases "the ultimate question [of discrimination] is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by the factfinder, upon a full record." Lam v. University of Hawaii, 40 F.3d 1551, 1563 (9th Cir. 1994).

Proof that the employer lied about the reasons for its actions allows, but does not require, the jury to find that discrimination was the real motive. St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). This has been the law for many years and was not altered, but merely reinforced, by Reeves. The likelihood of a jury's "rough justice" against an employer just because it lied is far outweighed by the common refusal of judges, and also juries, to believe in discrimination without direct evidence (and sometimes with it).

Our society is forced to make rules that structure discretion. These instruments of public policy must assist in deciding the full range of cases, not just extreme and unrealistic examples. In any such decision-making scheme there will be errors, both false positives and false negatives. Some false accusations will be sustained, while some guilty parties will go free. Knowing this, as a society we must make policy choices that reflect our values about the number and type of errors we can accept.

Hymans' choice would allow more educated bigots to discriminate, so long as they are careful about it, and it would allow reactions based on employers' stereotypes to be more easily covered up by post-facto justifications. It is the wrong choice. The right choice does force a few dishonest employers to risk a jury verdict, but in those cases liability may only be found where the jury believes the lie was intended to cover up discrimination. This is the choice of the US Supreme Court and the only choice that is consistent with the Washington Law Against Discrimination (LAD).

Washington's LAD must be liberally construed. RCW 49.60.010. It unequivocally states our collective abhorrence of discrimination, finding that discrimination "menaces the institutions and foundation of a free democratic state." The Hill decision turned a blind eye to this law and policy. It is very likely to be overruled.

Those dishonest employers who lie about the reasons for their actions are the only ones who take this risk of "rough justice." This is the best policy we can have in a world where people discriminate, even though they know it is wrong. In our opinion, the solution to this plight is really very simple: Don't lie, and don't discriminate.

Sincerely,

Stephen A. Teller
Chair, Washington Employment Lawyers Association

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