David Sherwyn, J.D.	Steven Carvell, Ph.D.

A series of decisions by the Supreme Court has shifted the burden of proof in cases involving employment discrimination. While that does not sound like exciting news, a new study from Cornell’s Center for Hospitality Research explains that changes in discrimination law can be expensive for employers—even if they are never found liable for employment discrimination.

The report, “The Mixed Motive Instruction in Employment Discrimination Cases: What Employers Need to Know,” was written by two professors at the Cornell School of Hotel Administration, David Sherwyn and Steven Carvell, and Joseph Baumgarten, a partner at Proskauer Rose, a national labor-law firm. The report is available for download at no charge from the Center’s website, http://www.hotelschool.cornell.edu/research/chr/pubs/reports/.

“To begin with, when an employer has actually discriminated against a person, that employee should be fairly compensated,” Sherwyn pointed out. “On the other hand, employers who have not violated the law should not have to pay damages.”

“What has happened is that the Supreme Court and the U.S. Congress have adjusted how employment discrimination cases are adjudicated,” Sherwyn continued. “After the Civil Rights Act of 1991 and several subsequent court cases, the result is that employers can find themselves paying thousands of dollars in court costs for both themselves and a plaintiff, even if a jury never finds that the employer discriminated against that plaintiff.”

In the report, the authors show how seemingly slight changes in the instructions given to a jury can result in radically different jury decisions. In the type of case, known as a “mixed motive” case, juries may find that an employer had both legitimate and discriminatory motives for making an employment decision. “Since these cases involve two determinations, juries might want to emulate Solomon and ‘split the baby,’ seemingly giving both sides a ‘win,’” Sherwyn said. “However, that means the employer must come up with court costs and attorneys’ fees for both sides. In other words, the employer ends up with an expensive ‘win.’” The report tests an approach developed by author Baumgarten for avoiding this unfair outcome.

Mr. Scott Berman is the US Advisory Leader of the Hospitality & Leisure Consulting Group of PricewaterhouseCoopers L.L.P. and a Principal in the Miami office. Before joining PricewaterhouseCoopers L.L.P., Mr. Berman was the Director of Development for Hilton International where he was responsible for new hotel development and acquisition of existing properties in the United States, Canada, Mexico, Latin America and the Caribbean.

Scott Berman

Mr. Berman is a specialist in the field of hotel and resort development and operations and has provided consulting services in the United States, South America, Central America, Mexico, the Caribbean Basin, Europe, the Far East and the former Soviet Union. He has experience with a multitude of leisure time and tourism related projects including, but not limited to, hotels and resorts of all types, vacation ownership and resort residential development, recreational facilities such as golf courses and marinas, restaurants and other food service operations, and casinos.

Mr. Berman holds a B.S. from Cornell University's School of Hotel Administration. He is Vice-Chair of the Urban Land Institute Hotel Development Council, Chairman of the Industry Relations Committee for the Greater Miami and the Beaches Hotel Association and is a member of the International Society of Hospitality Consultants. He has also appeared on CNN's Inside Business as a lodging expert and been quoted on hospitality issues in The Wall Street Journal, USA Today, The New York Times, Forbes, and a variety of industry publications.

The first Cornell Real Estate/Finance Roundtable, sponsored by the Center for Hospitality Research, will be held May 17 - 18, 2007 at the Statler Hotel, Cornell School of Hotel Administration. The Roundtable, chaired by Associate Professor Jan deRoos, will be attended by over 20 senior executives from various sectors of the hospitality industry. Please contact Jennifer Macera, at 607-255-3101 or js372@cornell.edu, if you are interested in sponsoring this event.

The Center is also a co-sponsor of the Cornell Reception at ALIS to be held on Tuesday, January 23, 2007 from 7:00 - 9:00 p.m. at The Peninsula Beverly Hills Hotel. The event is also sponsored by Hilton Hotels Corporation; Lehman Brothers; McElroy, Deutsch, Mulvaney & Carpenter, LLP; Holliday, Fenoglio Fowler, LLP; and Wells Fargo. To learn more about this reception, or to participate as a corporate sponsor, please contact Joe Strodel, Jr. at 607-255-4646 or js343@cornell.edu

Produced by Human Resource Executive® Conferences in collaboration with Cornell University’s School of Hotel Administration and School of Industrial and Labor Relations, this will be the premier event for human resource management, employment law and labor relations professionals in the hospitality industry.