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Hospitality Leadership Through Learning
Faculty & Research

The Mixed Motive Instruction in Employment Discrimination Cases: What Employers Need to Know

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Vol 7 No 1
By:  David Sherwyn, J.D., Steven A. Carvell Ph.D., and Joseph Baumgarten J.D.

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Executive Summary: In litigation regarding employment discrimination, the burden of establishing proof has continued to shift. As a result, employers and legal counsel need to be aware of the status of what they and human resources professionals should consider when an employee alleges that the employer has violated federal discrimination statutes. The original standard of proof required the plaintiff to establish that the employer discriminated against that person. Many cases still involve that approach, giving the plaintiff the burden of creating prima facie case. However, another line of rulings by the U.S.

Supreme Court added an alternative method for addressing discrimination litigation, known as the mixed motive approach. The two-prong mixed motive case requires the employee to demonstrate that a protected characteristic (e.g., race, sex, national origin) was a substantial factor in an employer's adverse action. If that is established, the employer then has the burden of proving that the decision would have been made in any event, regardless of the employee's protected characteristic. As a practical matter, employers facing litigation of this type must consider whether and how to defend such a case. Even a "win" can be expensive, because in cases where there is a divided decision, the employer must pay the plaintiff's attorney fees and court costs, as well as its own.

Moreover, since the Civil Rights Act of 1991 places discrimination cases in front of a jury, a divided decision is seemingly more likely. Although that presumably gives both sides a win, it still means a large expense for the employer.

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About David Sherwyn, J.D.

David Sherwyn (BS, JD, Cornell University) is an associate professor of law at Cornell University's School of Hotel Administration. He is a research fellow at the Center for Labor and Employment Law at New York University's School of Law. In addition, Dave is of counsel to the law firm of Shea Stokes Roberts & Wagner. Prior to joining the School of Hotel Administration, Dave practiced management-side labor and employment law for six years.

Dave has published articles in the Stanford Law Review, Berkeley Journal of Labor and Employment Law, Fordham Law Review, University of Pennsylvania Labor and Employment Law Journal, and the Cornell Hospitality Quarterly.

Dave teaches H ADM 387: Business and Hospitality Law, a required class with more than 100 students. In addition, each spring, Dave teaches H ADM 485: Employment Discrimination Law and Union-Management Relations and HA 481 Labor Relations in the Hospitality Industry. Dave received a Hotel School Teacher of the Year Award in 1998, 1999, 2000, 2001, 2002, and 2005, 2007 and 2008. Dave has been nominated for the fraternity and sorority teaching award twelve times and has won the award twice.

In 2002 Dave conceived of, organized, and hosted the Center for Hospitality Research's first Hospitality Industry Roundtable. Because of the success of the Labor and Employment Law Roundtable, the Center now hosts Roundtables in each of the disciplines that are represented in the School.

For more information visit http://www.hotelschool.cornell.edu/research/facultybios/faculty.html?id=72

About Steven A. Carvell Ph.D.

Steven Carvell is a professor and associate dean for Academic Affairs at the School of Hotel Administration. He has taught finance courses at the school since 1986. Carvell’s research is directed toward new approaches to hotel valuation and investment decisions. Recent projects have focused on adjusted present value analysis and the valuation of sequential real options within a hotel valuation framework; the valuation of exotic reservation options in hotels; and determining optimal brand standards for hotel companies. Carvell recently finished a major project designed to identify the determinants of hotel demand in the U.S. He is also involved with evaluating the effectiveness of hotel company business strategies, using strategic benchmarking and Economic Value Added analysis. Carvell is the co-author of "In the Shadows of Wall Street," (Prentice-Hall, Inc. Strebel, Paul and Steven Carvell, 1988). publisher, year). He has published ten articles in academic and professional journals including the Financial Analysts Journal and the Harvard Business Review. His work has been featured in the Wall Street Journal, The New York Times, Forbes, Fortune, Institutional Investor and Financial World. Carvell has worked for professional money managers in applied strategy in the equity market and served as a consultant to the Presidential Commission on the 1987 stock market crash. He specializes in new approaches to valuation and risk analysis in feasibility studies, hotel debt capacity models, strategic benchmarking and Economic Value Added Analysis. Professor Carvell has conducted numerous specialized Executive Education seminars for some of the largest hotel companies in the world. Carvell holds a Ph.D. from the State University of New York, Binghamton.

For more information visit http://www.hotelschool.cornell.edu/research/facultybios/faculty.html?id=11