- United States Supreme Court Rules That A Plaintiff Is Not Required To Present Direct Evidence Of Discrimination In Title VII Mixed-Motive Cases
- July 17, 2003
- Law Firm: Orrick, Herrington & Sutcliffe LLP - San Francisco Office
In a decision written by Justice Thomas, Desert Palace Inc., v. Costa, 539 U.S. __, No. 02-679 (2003), on Monday, the United States Supreme Court affirmed a decision out of the 9th Circuit holding that the Civil Rights Act of 1991 did not require a showing of direct evidence of discrimination as a prerequisite to a jury's consideration of mixed motive. Rather, a plaintiff need only present sufficient evidence for a reasonable jury to conclude by a preponderance of the evidence that a protected characteristic was a motivating factor for any adverse employment action.
In so doing, the Court rejected arguments from the employer, calling for a heightened showing of direct evidence in a mixed-motive case based on the Court's 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Court explicitly held that the 1991 Civil Rights Act made any analysis of Price Waterhouse, on this issue at least, irrelevant. Indeed, Justice O'Connor, the author of the Price Waterhouse concurring opinion relied upon by the employer, agreed with the analysis presented in Desert Palace in a separate concurrence.
Desert Palace arose from a claim from a female warehouse worker, terminated after a physical altercation with a male co-worker that she had been discriminated against on the basis of gender. The District Court gave the jury the following mixed-motive instruction:
You have heard evidence that the defendant's treatment of the plaintiff was motivated by the plaintiff's sex and also by other lawful reasons. If you find that the plaintiff's sex was a motivating factor in the defendant's treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason. However, if you find that the defendant's treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff's gender had played no role in the employment decision.
The Desert Palace unsuccessfully objected to the instruction on the grounds that the plaintiff had failed to provide "direct evidence" that her gender was a motivating factor and thus, no mixed-motive instruction was appropriate relying heavily on Price Waterhouse. Ultimately, the jury awarded the plaintiff $265,000 in back pay, compensatory damages and punitive damages. After the 9th Circuit initially reversed the order, a divided en banc panel of the 9th Circuit reinstated the District Court judgment holding that direct evidence of discrimination was not required to obtain a mixed-motive jury instruction and that a plaintiff could establish a violation through a preponderance of evidence (whether circumstantial or direct) that a protected characteristic played a motivating factor in the decision.
The Supreme Court, in a 9-0 decision agreed with the en banc 9th Circuit holding that the 1991 Civil Rights Act had superseded Price Waterhouse to the extent Price Waterhouse could be read as requiring direct evidence in a mixed-motive case. In particular, Justice Thomas noted that §2000e-2(m) of the Civil Rights Act of 1991 unambiguously states that a plaintiff need only "demonstrate" that an employer used a forbidden consideration with respect to an adverse employment decision and that Title VII defines the term "demonstrates" merely as to "meet the burdens of production and persuasion." The decision emphasizes that Congress evinced no specific intent to hold plaintiffs to a heightened standard of proof in mixed motive cases.
What Does This Means for Employers?
Of particular note for employers may be Justice Thomas's specific reference to the utility of circumstantial evidence in discrimination cases generally. In terms likely to be quoted by plaintiff's employment lawyers, Justice Thomas chose to cite language in a footnote from a 1957 Supreme Court decision, Rogers v. Missouri Pacific R. Co, 348 U.S. 500, n.17 (1957) stating that "circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."
The decision in Desert Palace is likely to lead to an increase in pleadings with a mixed-motive component and will make obtaining summary judgment, directed verdicts and jury verdicts in mixed-motive cases significantly more challenging.