Direct Evidence Not Needed in Mixed-Motive Cases

Two years after Price Waterhouse, Congress passed the Civil Rights Act of 1991, and codified the “mixed-motive” analysis. Now, Section 2000e-2(m) of Title VII provides that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” The amendment does not address the evidence that can be used to prosecute a mixed-motive case and, over the years, courts have reached different conclusions. At its heart, this disagreement focuses on Justice O'Connor's use of the term “direct evidence” in Price Waterhouse.

The Costa Case

The Court granted certiorari in Desert Palace, Inc. v. Costa to address the Circuit split in mixed motive cases. Costa worked as warehouse employee and heavy equipment operator at Caesar's Palace in Las Vegas, which is owned by Desert Palace. She was the only female employee in the job, and experienced problems with both management and co-workers that led to discipline, including informal rebukes, a denial of privileges, and a suspension. Desert Palace finally fired Costa when she was involved in a fight with a male co-worker. The co-worker, however, drew only a 5-day suspension.

At trial, Costa presented evidence suggesting that she had received harsher discipline than men for the same conduct, and that supervisors stacked her disciplinary record and frequently used or tolerated sex-based slurs against her. When the case went to the jury, the mixed motive instruction did not incorporate a requirement that there be “direct evidence” of intentional sex discrimination. Desert Palace unsuccessfully objected to this instruction. The jury ruled in Costa's favor.

When the case got to the Supreme Court, the question was “whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991.” A unanimous Court answered “no.” The opinion, written by Justice Thomas, gave two reasons for reaching this conclusion.

First, Section 2000e-2(m) unambiguously states that a plaintiff need only “demonstrat[e]” that an employer used a forbidden consideration with respect to “ any employment practice” and that the statute does not mention nor require that a plaintiff make a “heightened showing through direct evidence.” The term “demonstrate” is defined in Section 2000e(m) of Title VII to mean “meets the burdens of production and persuasion.” If Congress intended “demonstrate” to mean something else, it could have said so, as it has done elsewhere in Title 42 when it wants to incorporate heightened proof requirements.

Second, the Court noted that “the [c]onventional rul[e] of civil litigation … generally applies in Title VII cases” where a plaintiff is required to prove his case “by a preponderance of the evidence.” Justice Thomas noted that “circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” Even in criminal cases, circumstantial evidence is sufficient to support a criminal conviction where the standard of proof is the heightened “beyond a reasonable doubt.”

Following this reasoning, the Court held that, in order to obtain a mixed-motive instruction under Section 2000e-2(m), a plaintiff “need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that 'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'” Concurring, Justice O'Connor stated that the direct evidence requirement was appropriate before the 1991 Civil Rights Act, but that Congress codified a new evidentiary rule for mixed-motive cases arising under Title VII in 1991, and therefore agreed that the District Court's mixed-motive instruction was appropriate.

Conclusion

Costa focused on the language in Title VII, but it will undoubtedly have an impact on other anti-discrimination laws. The Supreme Court denied certiorari in mixed-motive cases under the ADA and ADEA just a week after handing down Costa. In both cases, appellate courts had imposed the direct-evidence requirement in mixed-motive cases, rejecting the plaintiffs' claims. Given that courts generally use the same analysis in ADA and ADEA cases, Costa will in all likelihood be applied there as well as in Title VII cases.

The Supreme Court ended its last term holding that direct evidence of discrimination is not necessary in a Title VII mixed-motive case. Desert Palace, Inc. v. Costa , 123 S. Ct. 2148 (2003) brings an end to an appellate court split regarding evidentiary burdens that began with the Court's plurality decision in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989).

In Price Waterhouse, the Court considered facts indicating that both legitimate and illegal reasons motivated an employment decision. When Ann Hopkins was passed over for partnership, she was told that she needed to “take a course at charm school” and to “dress more femininely.” But there was also evidence to suggest that the company had legitimate concerns about Hopkins' performance. The Court concluded that under Title VII, an employer may avoid liability “by proving that it would have made the same decision even if it had not allowed [protected status] to play such a role.”

The Justices, however, could not agree how the burden of proof fell out in a mixed-motive case. Four saw no “limitation on the possible ways of proving that stereotyping played a motivating role in an employment decision.” In a concurring opinion, Justice O'Connor suggested that the burden should shift to the employer where a plaintiff shows “by direct evidence that an illegitimate criterion was a substantial factor in the decision.”

Two years after Price Waterhouse, Congress passed the Civil Rights Act of 1991, and codified the “mixed-motive” analysis. Now, Section 2000e-2(m) of Title VII provides that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” The amendment does not address the evidence that can be used to prosecute a mixed-motive case and, over the years, courts have reached different conclusions. At its heart, this disagreement focuses on Justice O'Connor's use of the term “direct evidence” in Price Waterhouse.

The Costa Case

The Court granted certiorari in Desert Palace, Inc. v. Costa to address the Circuit split in mixed motive cases. Costa worked as warehouse employee and heavy equipment operator at Caesar's Palace in Las Vegas, which is owned by Desert Palace. She was the only female employee in the job, and experienced problems with both management and co-workers that led to discipline, including informal rebukes, a denial of privileges, and a suspension. Desert Palace finally fired Costa when she was involved in a fight with a male co-worker. The co-worker, however, drew only a 5-day suspension.

At trial, Costa presented evidence suggesting that she had received harsher discipline than men for the same conduct, and that supervisors stacked her disciplinary record and frequently used or tolerated sex-based slurs against her. When the case went to the jury, the mixed motive instruction did not incorporate a requirement that there be “direct evidence” of intentional sex discrimination. Desert Palace unsuccessfully objected to this instruction. The jury ruled in Costa's favor.

When the case got to the Supreme Court, the question was “whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991.” A unanimous Court answered “no.” The opinion, written by Justice Thomas, gave two reasons for reaching this conclusion.

First, Section 2000e-2(m) unambiguously states that a plaintiff need only “demonstrat[e]” that an employer used a forbidden consideration with respect to “ any employment practice” and that the statute does not mention nor require that a plaintiff make a “heightened showing through direct evidence.” The term “demonstrate” is defined in Section 2000e(m) of Title VII to mean “meets the burdens of production and persuasion.” If Congress intended “demonstrate” to mean something else, it could have said so, as it has done elsewhere in Title 42 when it wants to incorporate heightened proof requirements.

Second, the Court noted that “the [c]onventional rul[e] of civil litigation … generally applies in Title VII cases” where a plaintiff is required to prove his case “by a preponderance of the evidence.” Justice Thomas noted that “circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” Even in criminal cases, circumstantial evidence is sufficient to support a criminal conviction where the standard of proof is the heightened “beyond a reasonable doubt.”

Following this reasoning, the Court held that, in order to obtain a mixed-motive instruction under Section 2000e-2(m), a plaintiff “need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that 'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'” Concurring, Justice O'Connor stated that the direct evidence requirement was appropriate before the 1991 Civil Rights Act, but that Congress codified a new evidentiary rule for mixed-motive cases arising under Title VII in 1991, and therefore agreed that the District Court's mixed-motive instruction was appropriate.

Conclusion

Costa focused on the language in Title VII, but it will undoubtedly have an impact on other anti-discrimination laws. The Supreme Court denied certiorari in mixed-motive cases under the ADA and ADEA just a week after handing down Costa. In both cases, appellate courts had imposed the direct-evidence requirement in mixed-motive cases, rejecting the plaintiffs' claims. Given that courts generally use the same analysis in ADA and ADEA cases, Costa will in all likelihood be applied there as well as in Title VII cases.