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E. Circumstances in Which EEOC Attorneys
Should Consider Rule 50 Motions
and Motions for New Trial

  • Motions for judgment as a matter of law (JMOL) under Rule 50(a), Fed. R. Civ. P., and for new trial after verdict under Rule 59, should be made on any issues on which the defendant bears the burden of proof, for example (this list is illustrative only):
    • Bona fide occupational qualification (BFOQ) defenses to discriminatory policies or qualification standards under Title VII or the Age Discrimination in Employment Act (ADEA)
    • Reasonable factor other than age (RFOA) defense under the ADEA
    • Waiver under the Older Workers Benefits Protection Act (OWBPA)
    • Statutory defenses under the Equal Pay Act (EPA)
    • Business necessity defense in adverse impact cases under Title VII or the ADEA
    • Less discriminatory alternative rejected under Title VII or the ADEA in an impact case
    • Undue hardship in religious accommodation cases
    • Americans with Disabilities Act (ADA) accommodation cases – failure to participate in interactive process where accommodation exists; undue hardship
    • ADA qualification cases – business necessity for standard; direct threat
    • Harassment cases (any basis) – in supervisor harassment context, Faragher-Ellerth defense

    In these cases if we are entitled to JMOL because the defendant failed to establish one of these defenses, we would ordinarily be entitled to judgment on liability.

  • Motions for JMOL should be made, where appropriate, even in cases involving shifting burdens of proof, despite the fact that the EEOC bears the ultimate burden of persuasion. Since the burden of persuasion is merely proof by a preponderance, we should consider arguing that we have met that standard as a matter of law in disparate treatment cases where the employer’s assertion of a nondiscriminatory reason is weak and/or our evidence is strong on pretext, in any cases with direct evidence in which the employer has not asserted an affirmative defense and proven by a preponderance of the evidence that it would have made the same decision absent the prohibited motive, and in any cases involving facially discriminatory policies where proffered defenses are weak.*

    Remember -- the sufficiency of the evidence is not reviewable on appeal unless a motion for JMOL has been made in the trial court prior to submission of the case to the jury and renewed on the same ground after an adverse verdict. Nor is sufficiency of the evidence reviewable if the trial court denied a motion that does not state specific grounds as required by Rule 50(a). Only in rare cases will an appellate court look at the sufficiency of the evidence to support a verdict absent a motion for JMOL when it would constitute plain error apparent on the face of the record that, if not noticed, would result in a manifest miscarriage of justice.


* As indicated in the Introduction to this section (see section III.A., above), even where sufficient grounds for JMOL are absent, the legal unit should consider moving for a new trial under Rule 59 where the verdict is against the weight of the evidence.