Direct Evidence Not Required in Mixed Motive Case

The plurality did not 'suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision.' Id. at 251-252. Justices White and O'Connor concurred in the judgment. Justice White stated that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) and asserted that the burden shifted to the employer only when a plaintiff 'show[ed] that the unlawful motive was a substantial factor in the adverse employment action.' Price Waterhouse at 259.

Justice O'Connor, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a 'substantial factor' in the employment decision. Id. at 276. However, O'Connor urged that 'the burden on the issue of causation' would shift to the employer only where 'a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision.' Id. (emphasis added).

Civil Rights Act of 1991

Congress overruled this aspect of Price Waterhouse by enacting 42 U.S.C. ' 2000e-2(m). The Desert Palace Court examined this amendment to Title VII contained in the Civil Rights Act of 1991, noting that the courts of appeal have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a 'motivating factor' in an adverse employment action. Relying primarily on Justice O'Connor's concurrence in Price Waterhouse, a number of courts had held that direct evidence is required to establish liability under ' 2000e-2(m). See, e.g., Mohr v. Dustrol, Inc., 306 F.3d 636, 640-641 (8th Cir. 2002); Fernandez v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F.3d 1449, 1453-1454 (11th Cir 1996); Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995). However, the Ninth Circuit concluded otherwise in its decision below in Costa. 299 F.3d 838 (9th Cir. 2002). The Second Circuit as well concluded otherwise in Tyler v. Bethlehem Steel Corp., 958 F. 2d 1176 (2d Cir. 1992). In Tyler, the court rejected the view that direct evidence of discriminatory animus is required. Rather, the court stated: 'What is required is simply that the plaintiff submit enough evidence that, if believed, could reasonably allow a jury to conclude that the adverse employment consequences were 'because of' an impermissible factor.' Id. at 1187.

Costa's Gender Claim

Respondent Catharina Costa was employed as a warehouse worker and heavy equipment operator. She was the only woman in this job and in her local Teamsters bargaining unit. She experienced problems with management and her co-workers, which led to escalating disciplinary sanctions and her ultimate termination. She subsequently filed a Title VII sex discrimination claim. The case was tried to a jury.

At trial, Costa presented evidence that 1) she was singled out for 'intense 'stalking” by one of her supervisors, 2) she received harsher discipline than men for the same conduct, 3) she was treated less favorably than men in the assignment of overtime, and 4) supervisors repeatedly 'stack[ed]' her disciplinary record and 'frequently used or tolerated' sex-based slurs against her. 299 F.3d 838, 845-846 (9th Cir. 2002). The case was submitted to the jury with instructions, two of which were relevant in Desert Palace. First, without objection from the employer, the district court instructed the jury that ”[t]he plaintiff has the burden of proving ' by a preponderance of the evidence that she suffered adverse work conditions and that her gender 'was a motivating factor in any such work conditions imposed upon her.” Id. at 858.

Second, the district court instructed the jury that if Costa proved by a preponderance of the evidence that sex was a motivating factor in the adverse work conditions imposed on her, but petitioner's conduct was also motivated by lawful reasons, she was entitled to damages unless her employer proved by a preponderance of the evidence that it would have treated her similarly had gender played no role. Her employer unsuccessfully objected to this instruction, claiming that respondent had not adduced 'direct evidence' that gender was a motivating factor in petitioner's decision.

The jury awarded Costa back pay and compensatory and punitive damages. A Ninth Circuit panel vacated and remanded, holding that the district court had erred in giving the mixed-motive instruction because Costa had failed to present 'substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus.' The en banc court, however, reinstated the judgment, finding that the 1991 Act does not impose any special evidentiary requirement.

Supreme Court Decision

The employer articulated three arguments in Desert Palace: 1) Justice O'Connor's opinion is the holding of Price Waterhouse; 2) her Price Waterhouse opinion requires direct evidence of discrimination before a mixed-motive instruction can be given; and 3) the 1991 Act does not abrogate that holding. The Court found the third step of petitioner's argument flawed, primarily because it is inconsistent with the text of Section 2000e-2(m) of Title VII, as amended by the Civil Rights Act of 1991.

In analyzing the statutory text, the Court found the words of the statute unambiguous. For the Court, Justice Thomas noted that 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.' He found that 'on its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence.' Further, Justice Thomas wrote that there was no reason to depart from the '[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases,' that requires a plaintiff to prove his case 'by a preponderance of the evidence,' using 'direct or circumstantial evidence.' Id. at *6, citing Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714, n. 3 (1983). The Court acknowledged the utility of circumstantial evidence in discrimination cases, giving as an example Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, (2000). In Reeves, the Court stated that evidence that a defendant's explanation for an employment practice is 'unworthy of credence' is 'one form of circumstantial evidence that is probative of intentional discrimination. Moreover, the Court proclaimed that '[t]he reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” (citations omitted), citing 530 U.S. at 147 (emphasis added by Court).

Finally, the Court ruled that to obtain a mixed-motive instruction, '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.” Id at *8.

Merrick T. Rossein teaches at CUNY School of Law, and is a member of this publication's Board of Advisers.

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).

The plurality did not 'suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision.' Id. at 251-252. Justices White and O'Connor concurred in the judgment. Justice White stated that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) and asserted that the burden shifted to the employer only when a plaintiff 'show[ed] that the unlawful motive was a substantial factor in the adverse employment action.' Price Waterhouse at 259.

Justice O'Connor, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a 'substantial factor' in the employment decision. Id. at 276. However, O'Connor urged that 'the burden on the issue of causation' would shift to the employer only where 'a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision.' Id. (emphasis added).

Civil Rights Act of 1991

Congress overruled this aspect of Price Waterhouse by enacting 42 U.S.C. ' 2000e-2(m). The Desert Palace Court examined this amendment to Title VII contained in the Civil Rights Act of 1991, noting that the courts of appeal have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a 'motivating factor' in an adverse employment action. Relying primarily on Justice O'Connor's concurrence in Price Waterhouse, a number of courts had held that direct evidence is required to establish liability under ' 2000e-2(m). See, e.g., Mohr v. Dustrol, Inc. , 306 F.3d 636, 640-641 (8th Cir. 2002); Fernandez v. Costa Bros. Masonry, Inc. , 199 F.3d 572, 580 (1st Cir. 1999); Trotter v. Board of Trustees of Univ. of Ala. , 91 F.3d 1449, 1453-1454 (11th Cir 1996); Fuller v. Phipps , 67 F.3d 1137, 1142 (4th Cir. 1995). However, the Ninth Circuit concluded otherwise in its decision below in Costa. 299 F.3d 838 (9th Cir. 2002). The Second Circuit as well concluded otherwise in Tyler v. Bethlehem Steel Corp. , 958 F. 2d 1176 (2d Cir. 1992). In Tyler, the court rejected the view that direct evidence of discriminatory animus is required. Rather, the court stated: 'What is required is simply that the plaintiff submit enough evidence that, if believed, could reasonably allow a jury to conclude that the adverse employment consequences were 'because of' an impermissible factor.' Id. at 1187.

Costa's Gender Claim

Respondent Catharina Costa was employed as a warehouse worker and heavy equipment operator. She was the only woman in this job and in her local Teamsters bargaining unit. She experienced problems with management and her co-workers, which led to escalating disciplinary sanctions and her ultimate termination. She subsequently filed a Title VII sex discrimination claim. The case was tried to a jury.

At trial, Costa presented evidence that 1) she was singled out for 'intense 'stalking” by one of her supervisors, 2) she received harsher discipline than men for the same conduct, 3) she was treated less favorably than men in the assignment of overtime, and 4) supervisors repeatedly 'stack[ed]' her disciplinary record and 'frequently used or tolerated' sex-based slurs against her. 299 F.3d 838, 845-846 (9th Cir. 2002). The case was submitted to the jury with instructions, two of which were relevant in Desert Palace. First, without objection from the employer, the district court instructed the jury that ”[t]he plaintiff has the burden of proving ' by a preponderance of the evidence that she suffered adverse work conditions and that her gender 'was a motivating factor in any such work conditions imposed upon her.” Id. at 858.

Second, the district court instructed the jury that if Costa proved by a preponderance of the evidence that sex was a motivating factor in the adverse work conditions imposed on her, but petitioner's conduct was also motivated by lawful reasons, she was entitled to damages unless her employer proved by a preponderance of the evidence that it would have treated her similarly had gender played no role. Her employer unsuccessfully objected to this instruction, claiming that respondent had not adduced 'direct evidence' that gender was a motivating factor in petitioner's decision.

The jury awarded Costa back pay and compensatory and punitive damages. A Ninth Circuit panel vacated and remanded, holding that the district court had erred in giving the mixed-motive instruction because Costa had failed to present 'substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus.' The en banc court, however, reinstated the judgment, finding that the 1991 Act does not impose any special evidentiary requirement.

Supreme Court Decision

The employer articulated three arguments in Desert Palace: 1) Justice O'Connor's opinion is the holding of Price Waterhouse; 2) her Price Waterhouse opinion requires direct evidence of discrimination before a mixed-motive instruction can be given; and 3) the 1991 Act does not abrogate that holding. The Court found the third step of petitioner's argument flawed, primarily because it is inconsistent with the text of Section 2000e-2(m) of Title VII, as amended by the Civil Rights Act of 1991.

In analyzing the statutory text, the Court found the words of the statute unambiguous. For the Court, Justice Thomas noted that 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.' He found that 'on its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence.' Further, Justice Thomas wrote that there was no reason to depart from the '[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases,' that requires a plaintiff to prove his case 'by a preponderance of the evidence,' using 'direct or circumstantial evidence.' Id. at *6, citing Postal Service Bd. of Governors v. Aikens , 460 U.S. 711, 714, n. 3 (1983). The Court acknowledged the utility of circumstantial evidence in discrimination cases, giving as an example Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, (2000). In Reeves, the Court stated that evidence that a defendant's explanation for an employment practice is 'unworthy of credence' is 'one form of circumstantial evidence that is probative of intentional discrimination. Moreover, the Court proclaimed that '[t]he reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” (citations omitted), citing 530 U.S. at 147 (emphasis added by Court).

Finally, the Court ruled that to obtain a mixed-motive instruction, '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.” Id at *8.

Merrick T. Rossein teaches at CUNY School of Law, and is a member of this publication's Board of Advisers.