Supreme Court Clarifies Standard of Proof for Mixed-Motive Discrimination Cases

The Court was sharply divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove this affirmative defense. Justice Brennan, writing for a plurality of four Justices, would have held that the defendant could prove the affirmative defense by proving by a preponderance of the evidence. The plurality, however, did not suggest a limitation on the possible ways that the plaintiff could prove that gender played a motivating role.

Justice White and Justice O'Connor concurred in the decision. Justice White would have held that the case was governed by the burden of proof rules enunciated by the Court in Mt. Healthy City Bd. Of Ed. v. Doyle, under which the burden would have shifted to the defendant employer only where the plaintiff showed that an unlawful motive was a “substantial factor” in the adverse employment action. Justice O'Connor, like Justice White, would have required the plaintiff to show that the illegitimate motive was “substantial factor” in the challenged adverse employment decision. However, under Justice O'Connor's view, the burden on the issue of causation would shift to the employer only where the plaintiff could demonstrate by “direct evidence” that an unlawful criterion was a substantial factor in the adverse employment decision.

In 1991, Congress enacted the Civil Rights Act of 1991 (the 1991 Act) in large part as a response to several Supreme Court decisions construing Title VII, including the Price Waterhouse decision. The 1991 Act set forth standards of proof applicable in mixed-motive cases in two provisions. The first provision, codified in 42 U.S.C. ' 2000e-2(m), 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 in any employment practice, even though other factors also motivated the practice.” The second provision, codified in 42 U.S.C. ' 2000e-5(g)(2)(B), provides that, with respect to a claim in which an individual proves a violation under section 2000e-2(m), the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to the plaintiff to declaratory relief, certain types of injunctive relief and attorneys' fees and costs. In order to avail itself of the affirmative defense, the employer must demonstrate that it would have taken the same action in the absence of the impermissible motivating factor. Id.

Following passage of the 1991 Act, various U.S. Courts of Appeal were divided over the issue of whether a plaintiff must prove by “direct evidence” that an unlawful motive was a motivating factor in an adverse employment action.

Desert Palace v. Costa

The plaintiff in Desert Palace v. Costa was a woman employed at defendant's casino as a warehouse worker and heavy equipment operator. She was the only woman in that position and in her local union bargaining unit. The plaintiff experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary measures, including informal rebukes, a denial of privileges and a suspension. Ultimately, the defendant terminated plaintiff after she was involved in a physical altercation in a warehouse elevator with a male fellow-union member. While the defendant disciplined both employees, the male received only a 5-day suspension because he had a clean disciplinary record.

Lower Court Proceedings

The plaintiff filed a lawsuit in the U.S. District Court for the District of Nevada asserting claims of sex discrimination and sexual harassment under Title VII. The district court dismissed the sexual harassment claim but permitted the sex discrimination claim to go to the jury. At trial, the plaintiff presented evidence that she had been singled out for “intense stalking” by one of her supervisors, that she received harsher discipline than men for the same conduct, that she was treated less favorably than men in the assignment of overtime and that supervisors repeated “stacked” her disciplinary record and frequently used or tolerated sex-based slurs against her. Based on this evidence, the district court denied motion for a judgment as a matter of law and submitted the case to the jury with an instruction that, if the jury found that defendant's treatment was motivated by both lawful and unlawful reasons, the plaintiff was entitled to damages unless the defendant proved by a preponderance of the evidence that the defendant would have treated the plaintiff similarly even if the plaintiff's gender played no role in the employment decision.

The defendant unsuccessfully objected to this instruction, arguing that the plaintiff had failed to adduce “direct evidence” that gender was a motivating factor in the adverse employment actions. The jury rendered a verdict for the plaintiff and awarded backpay, compensatory damages and punitive damages. The district court denied the defendant's renewed motion for judgment as a matter of law.

On appeal, the U.S. Court of Appeals for the Ninth Circuit initially vacated and remanded on grounds that the district court erred in giving the mixed-motive instruction because the plaintiff had failed to present “substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus.” The court also concluded that the defendant was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that the plaintiff had been terminated because she is a woman.

After rehearing the case en banc, the court reinstated the district court's judgment. The court saw no need to decide whether Justice O'Connor's concurrence in Price Waterhouse controlled because Justice's O'Connor's references to “direct evidence” had been wholly abrogated by the 1991 Act. Turning to the language of 42 U.S.C. ' 2000e-2(m), the court observed that it imposed no special evidentiary requirements, including the need for “direct evidence.” Accordingly, the court held, a plaintiff may establish a Title VII violation in a mixed-motive case through a preponderance of the evidence, whether direct or circumstantial, that an unlawful reason was a motivating factor in the employer's decision. Based on that standard, the court held that the plaintiff's evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that her sex was a motivating factor.

Supreme Court's Opinion

The Supreme Court affirmed the en banc decision of the Ninth Circuit. Like the circuit court, the Court saw no reason to revisit Justice O'Connor's (or any other Justice's) opinion in Price Waterhouse. Instead, the Court relied on the text of 42 U.S.C. ' 2000e-2(m), which, according to the Court, unambiguously states only that a plaintiff need only “demonstrate” that an employer use a forbidden reason with respect to “any employment practice.” The Court noted that, on its face, 42 U.S.C. ' 2000e-2(m) does not even mention, much less require, that a plaintiff make a heightened showing through “direct evidence.”

The Court also noted that Congress explicitly defined the term “demonstrate” in the 1991 Act as “meet the burdens of production and persuasion.” The Court held that, had Congress intended the term “demonstrate” to require that the “burdens of production and persuasion” be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in 42 U.S.C. '2000e-2(m). Congress' failure to do so, the Court noted, was significant, because Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other federal statutes such as 8 U.S.C. ' 1158(a)(2)(B), which states that an application for political asylum may not be filed unless an alien demonstrates by “clear and convincing evidence” that the application was filed within 1 year of the alien's arrival in the United States, and 42 U.S.C. ' 5851(b)(3)(D), which states that relief may not be ordered against an employer in retaliation cases involving whistleblowers under the Atomic Energy Act where the employer is able to “demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.”

The Court also noted that Title VII's silence with respect to the rule in mixed-motive cases suggests that the Court should not depart from the conventional rule of civil litigation that generally applies in Title VII cases. That general rule requires plaintiffs to prove their cases by a preponderance of the evidence using direct or circumstantial evidence (citing Postal Board of Governors v. Aikens). The Court also noted that it has often acknowledged the utility of circumstantial evidence in discrimination cases. For example, in its 2000 decision, Reeves v. Sanderson Plumbing Products, Inc., the Court recognized that evidence that a defendant's explanation for a challenged employment practice is “unworthy of credence” is one form of circumstantial evidence that is probative of intentional discrimination. The Court also noted that it has never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required, citing its 1954 decision in Holland v. United States, in which it held that circumstantial evidence is intrinsically no different than testimonial evidence in criminal cases.

Finally, the Court noted that 42 U.S.C. ' 2000e-5(g)(2)(B), the companion provision of 42 U.S.C. '2000e-2(m), also utilizes the term “demonstrate.” The Court noted that, due to the similarity in structure between these two provisions, it would be logical to assume that the term “demonstrate” would carry the same meaning with respect to both provisions. And, the Court observed, during oral argument, the defendant's counsel stated that he did not agree that the defendant employer had a heightened standard to satisfy in connection with proving the affirmative defense under 42 U.S.C. ' 2000e-5(g)(2)(B).

Thus the Court concluded, in mixed-motive cases, a plaintiff need only present evidence sufficient for a reasonable jury to conclude, by a preponderance of the evidence, that one or more prohibited factors under Title VII was a motivating factor for any challenged employment practice, whether by direct or circumstantial evidence.

Conclusion

The Supreme Court's decision in Desert Palace, Inc. v. Costa represents a significant victory for employees. An employee alleging a violation of Title VII in a mixed-motive case may rely on circumstantial evidence, rather than the more stringent standard of direct evidence, to satisfy his or her burden of proving that the challenged adverse employment action was motivated by a criterion prohibited by Title VII. As a result, defendant employers will find it more difficult to prevail in respect of their pre-trial motions for summary judgment, resulting in more jury trials.

Robert P. Lewis is a partner in the New York office of Baker & McKenzie.

At the conclusion of its most recent 2002-2003 term, the U.S. Supreme Court issued a decision clarifying plaintiffs' standard of proof in “mixed-motive” employment discrimination cases under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. In Desert Palace, Inc. v. Costa, the Court held that a plaintiff is required to prove by direct evidence that an unlawful factor was a “motivating factor” in the challenged adverse employment action. Instead, a plaintiff can prove his or her discrimination claim in a mixed-motive case by circumstantial evidence. As a result of this decision, defendants will find it more difficult to obtain summary judgment dismissing mixed-motive discrimination cases prior to trial, the result of which will be that more such cases will be subjected to the uncertainties of jury trials.

Legal Background

This case finds its origins in the U.S. Supreme Court's 1989 decision in Price Waterhouse v. Hopkins. In Price Waterhouse, the Court first wrestled with the standard of proof in a mixed-motive case brought under Title VII, ie, a case in which the defendant's adverse job action was motivated by both unlawful discriminatory reasons and lawful reasons. Noting that Title VII prohibits employers from discriminating “because of” gender, the Court held 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 a role in its decision.

The Court was sharply divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove this affirmative defense. Justice Brennan, writing for a plurality of four Justices, would have held that the defendant could prove the affirmative defense by proving by a preponderance of the evidence. The plurality, however, did not suggest a limitation on the possible ways that the plaintiff could prove that gender played a motivating role.

Justice White and Justice O'Connor concurred in the decision. Justice White would have held that the case was governed by the burden of proof rules enunciated by the Court in Mt. Healthy City Bd. Of Ed. v. Doyle, under which the burden would have shifted to the defendant employer only where the plaintiff showed that an unlawful motive was a “substantial factor” in the adverse employment action. Justice O'Connor, like Justice White, would have required the plaintiff to show that the illegitimate motive was “substantial factor” in the challenged adverse employment decision. However, under Justice O'Connor's view, the burden on the issue of causation would shift to the employer only where the plaintiff could demonstrate by “direct evidence” that an unlawful criterion was a substantial factor in the adverse employment decision.

In 1991, Congress enacted the Civil Rights Act of 1991 (the 1991 Act) in large part as a response to several Supreme Court decisions construing Title VII, including the Price Waterhouse decision. The 1991 Act set forth standards of proof applicable in mixed-motive cases in two provisions. The first provision, codified in 42 U.S.C. ' 2000e-2(m), 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 in any employment practice, even though other factors also motivated the practice.” The second provision, codified in 42 U.S.C. ' 2000e-5(g)(2)(B), provides that, with respect to a claim in which an individual proves a violation under section 2000e-2(m), the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to the plaintiff to declaratory relief, certain types of injunctive relief and attorneys' fees and costs. In order to avail itself of the affirmative defense, the employer must demonstrate that it would have taken the same action in the absence of the impermissible motivating factor. Id.

Following passage of the 1991 Act, various U.S. Courts of Appeal were divided over the issue of whether a plaintiff must prove by “direct evidence” that an unlawful motive was a motivating factor in an adverse employment action.

Desert Palace v. Costa

The plaintiff in Desert Palace v. Costa was a woman employed at defendant's casino as a warehouse worker and heavy equipment operator. She was the only woman in that position and in her local union bargaining unit. The plaintiff experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary measures, including informal rebukes, a denial of privileges and a suspension. Ultimately, the defendant terminated plaintiff after she was involved in a physical altercation in a warehouse elevator with a male fellow-union member. While the defendant disciplined both employees, the male received only a 5-day suspension because he had a clean disciplinary record.

Lower Court Proceedings

The plaintiff filed a lawsuit in the U.S. District Court for the District of Nevada asserting claims of sex discrimination and sexual harassment under Title VII. The district court dismissed the sexual harassment claim but permitted the sex discrimination claim to go to the jury. At trial, the plaintiff presented evidence that she had been singled out for “intense stalking” by one of her supervisors, that she received harsher discipline than men for the same conduct, that she was treated less favorably than men in the assignment of overtime and that supervisors repeated “stacked” her disciplinary record and frequently used or tolerated sex-based slurs against her. Based on this evidence, the district court denied motion for a judgment as a matter of law and submitted the case to the jury with an instruction that, if the jury found that defendant's treatment was motivated by both lawful and unlawful reasons, the plaintiff was entitled to damages unless the defendant proved by a preponderance of the evidence that the defendant would have treated the plaintiff similarly even if the plaintiff's gender played no role in the employment decision.

The defendant unsuccessfully objected to this instruction, arguing that the plaintiff had failed to adduce “direct evidence” that gender was a motivating factor in the adverse employment actions. The jury rendered a verdict for the plaintiff and awarded backpay, compensatory damages and punitive damages. The district court denied the defendant's renewed motion for judgment as a matter of law.

On appeal, the U.S. Court of Appeals for the Ninth Circuit initially vacated and remanded on grounds that the district court erred in giving the mixed-motive instruction because the plaintiff had failed to present “substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus.” The court also concluded that the defendant was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that the plaintiff had been terminated because she is a woman.

After rehearing the case en banc, the court reinstated the district court's judgment. The court saw no need to decide whether Justice O'Connor's concurrence in Price Waterhouse controlled because Justice's O'Connor's references to “direct evidence” had been wholly abrogated by the 1991 Act. Turning to the language of 42 U.S.C. ' 2000e-2(m), the court observed that it imposed no special evidentiary requirements, including the need for “direct evidence.” Accordingly, the court held, a plaintiff may establish a Title VII violation in a mixed-motive case through a preponderance of the evidence, whether direct or circumstantial, that an unlawful reason was a motivating factor in the employer's decision. Based on that standard, the court held that the plaintiff's evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that her sex was a motivating factor.

Supreme Court's Opinion

The Supreme Court affirmed the en banc decision of the Ninth Circuit. Like the circuit court, the Court saw no reason to revisit Justice O'Connor's (or any other Justice's) opinion in Price Waterhouse. Instead, the Court relied on the text of 42 U.S.C. ' 2000e-2(m), which, according to the Court, unambiguously states only that a plaintiff need only “demonstrate” that an employer use a forbidden reason with respect to “any employment practice.” The Court noted that, on its face, 42 U.S.C. ' 2000e-2(m) does not even mention, much less require, that a plaintiff make a heightened showing through “direct evidence.”

The Court also noted that Congress explicitly defined the term “demonstrate” in the 1991 Act as “meet the burdens of production and persuasion.” The Court held that, had Congress intended the term “demonstrate” to require that the “burdens of production and persuasion” be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in 42 U.S.C. '2000e-2(m). Congress' failure to do so, the Court noted, was significant, because Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other federal statutes such as 8 U.S.C. ' 1158(a)(2)(B), which states that an application for political asylum may not be filed unless an alien demonstrates by “clear and convincing evidence” that the application was filed within 1 year of the alien's arrival in the United States, and 42 U.S.C. ' 5851(b)(3)(D), which states that relief may not be ordered against an employer in retaliation cases involving whistleblowers under the Atomic Energy Act where the employer is able to “demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.”

The Court also noted that Title VII's silence with respect to the rule in mixed-motive cases suggests that the Court should not depart from the conventional rule of civil litigation that generally applies in Title VII cases. That general rule requires plaintiffs to prove their cases by a preponderance of the evidence using direct or circumstantial evidence (citing Postal Board of Governors v. Aikens). The Court also noted that it has often acknowledged the utility of circumstantial evidence in discrimination cases. For example, in its 2000 decision, Reeves v. Sanderson Plumbing Products, Inc., the Court recognized that evidence that a defendant's explanation for a challenged employment practice is “unworthy of credence” is one form of circumstantial evidence that is probative of intentional discrimination. The Court also noted that it has never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required, citing its 1954 decision in Holland v. United States, in which it held that circumstantial evidence is intrinsically no different than testimonial evidence in criminal cases.

Finally, the Court noted that 42 U.S.C. ' 2000e-5(g)(2)(B), the companion provision of 42 U.S.C. '2000e-2(m), also utilizes the term “demonstrate.” The Court noted that, due to the similarity in structure between these two provisions, it would be logical to assume that the term “demonstrate” would carry the same meaning with respect to both provisions. And, the Court observed, during oral argument, the defendant's counsel stated that he did not agree that the defendant employer had a heightened standard to satisfy in connection with proving the affirmative defense under 42 U.S.C. ' 2000e-5(g)(2)(B).

Thus the Court concluded, in mixed-motive cases, a plaintiff need only present evidence sufficient for a reasonable jury to conclude, by a preponderance of the evidence, that one or more prohibited factors under Title VII was a motivating factor for any challenged employment practice, whether by direct or circumstantial evidence.

Conclusion

The Supreme Court's decision in Desert Palace, Inc. v. Costa represents a significant victory for employees. An employee alleging a violation of Title VII in a mixed-motive case may rely on circumstantial evidence, rather than the more stringent standard of direct evidence, to satisfy his or her burden of proving that the challenged adverse employment action was motivated by a criterion prohibited by Title VII. As a result, defendant employers will find it more difficult to prevail in respect of their pre-trial motions for summary judgment, resulting in more jury trials.

Robert P. Lewis is a partner in the New York office of Baker & McKenzie.