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Top NY Court Blinks in 'First Department' WPP Discrimination Power Play
Date:11/13/2008

for the adverse employment action, courts outside New York had aligned around the "real reason" standard, which requires that the analysis advance to a third level where the motivations of the employer are considered. Meister argued in their briefs that while disproving the "legitimate reason" can be helpful to proving discrimination, it is not necessary to do so.

"It's the 'blue eyes defense,' Meister argued. "It's like saying we fired her because she had blue eyes...and then proving that her eyes are blue, and suggesting that this disposes of the fact that the employer was motivated by discrimination."

Under McDonnell Douglas, the standard for proving discrimination established by the United States Supreme Court, a plaintiff seeking to prove discrimination must proffer a "prima facie" case, while the employer must only produce a "legitimate reason" that it does not have to prove, while the plaintiff ultimately bearing the burden of proving that the employer was motivated by discrimination and that the "real reason" was discrimination. In finding that Jordan "presented no evidence of pretext" to rebut the "legitimate reasons" offered by WPP's attorneys, and therefore the jury verdict was "against the weight of the evidence", the First Department chose to ignore all of the evidence of discrimination that Jordan produced at trial, including testimony by her and top executives that she was openly referred to as "a cripple", hazed about her need to use a cane to ambulate, and treated differently by her supervisors than her non disabled peers, including being paid half what non-disabled EVP's were compensated. The First Department also ignored evidence that decision maker Doug Fidoten, who fired Jordan, "could not say" whether it was more cost effective to terminate her or not, evidence that her termination as the agency's top Planning executive was not part of the mid 1994 merger layoffs which targeted non-client staff positions, and evidence that the
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SOURCE EndDiscriminationNow.com
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