context: Healthy defense in the course of the liability phase." Pls.' Mot. at 7. As the preceding discussion indicates, there is strong legal support for this argument; a harmless-error contention has been deemed an affirmative defense to liability for damages.
citation_a.signal: cf.
citation_a.parenthetical: "even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration" (emphasis added
citation_a.sentence: See, e.g., Sanders, 594 F.2d at 816 (“the ultimate burden should be on the party whose eiTor and obfuscation of the evidence caused the problem”); Engels, 678 F.2d at 175 (“the end-burden of persuasion falls to the government to show harmlessness”); cf. Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775 (“[T]he employer’s burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the fact finder on one point, and then the employer, if it wishes to prevail, must persuade it on another.”); Lesage, 528 U.S. at 20-21, 120 S.Ct. 467 (“even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration” (emphasis added)).
citation_b.signal: see
citation_b.identifier: 678 F.2d 175, 175
citation_b.parenthetical: "the end-burden of persuasion falls to the government to show harmlessness"
citation_b.sentence: See, e.g., Sanders, 594 F.2d at 816 (“the ultimate burden should be on the party whose eiTor and obfuscation of the evidence caused the problem”); Engels, 678 F.2d at 175 (“the end-burden of persuasion falls to the government to show harmlessness”); cf. Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775 (“[T]he employer’s burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the fact finder on one point, and then the employer, if it wishes to prevail, must persuade it on another.”); Lesage, 528 U.S. at 20-21, 120 S.Ct. 467 (“even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration” (emphasis added)).