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Direct Evidence Not Required in Mixed Motive Case

BY Merrick T. Rossein
September 02, 2003

Last month, the Supreme Court was asked to decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII, as amended by the Civil Rights Act of 1991. Desert Palace, Inc. v. Costa, 2003 WL 21310219 (U.S. June 9, 2003) The Court unanimously held that direct evidence is not required. This is consistent with Second Circuit law as articulated in Tyler v. Bethlehem Steel Corp., 958 F. 2d 1176 (2d Cir. 1992). In so ruling, the Court resolved a split in the Circuits over the question of the evidentiary burden placed on plaintiffs in Title VII, mixed motive cases.

Price Waterhouse Decision

This is not the first time that this issue has come before the Court. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court considered whether an employment decision is made 'because of' sex where both legitimate and illegitimate reasons motivated the decision. The Price Waterhouse Court concluded that an employer could 'avoid a finding of liability ' by proving that it would have made the same decision even if it had not allowed gender to play such a role.' 490 U.S. at 244; see id. at 261, n. (White, J., concurring in judgment); id. at 261 (O'Connor, J., concurring in judgment). However, the Court was divided over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense. Justice Brennan, writing for a plurality of four Justices, asserted that 'when a plaintiff ' proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account.' Id. at 258 (emphasis added).

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