The Second Circuit Court of Appeals released an unpublished decision earlier this week that should give employment law practitioners (and judges) some pause as they go to trial on discrimination claims.  It should serve as a cautionary tale about the use of certain language in jury instructions and it provides some guidance as to where the court might be headed if it had to decide the issue head-on again. 

For those who haven’t tried cases (or for employers), you might be surprised to learn in every case, the judge has a good deal of discretion as to how to tell a jury what the rules are that it needs to follow. These so-called "jury instructions" vary from case to case and often times, attorneys for both sides have the opportunity to submit proposed instructions for the court to follow.

In discrimination cases, the Court of Appeals has said that a plaintiff does not need to prove that discrimination was the sole motivating factor, the primary motivating factor, or the real motivating factor in the adverse employment action (typically the decision to fire him or her).  Instead, that employee or former employee must only prove that discrimination was "a motivating factor" in the adverse employment action.

But what happens when a court instructs a jury that a plaintiff must prove that the employer took adverse action against him "intentionally and with a discriminatory animus because of his disability"? That was what the Second Circuit, in Olson v. New York (download here) had to decide. 

The court said that such an explanation (and particularly the "because of" language) could have been "confusing to the jury" and that it was "troubled by some of this wording". 

Ultimately, the court took a pass on deciding whether that language was truly objectionable saying that, under the facts in this case, there was "overwhelming evidence at trial that [the Plaintiff] was fired for legitimate non-discriminatory reasons".  The court found that any error in the jury instruction language in this case was "harmless".   

For companies and attorneys about to try a discrimination case, this case should serve as a warning that using a "because of" phrase may not hold muster, particularly without any further explanations about what that means. 

In a closer case than the facts of Olson presented, the Second Circuit decision suggests that the Court might reverse and send the case back down to the District Court for another trial.  Given the costs of going to trial nowadays, that’s a risk that may not be worth taking.