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Mixed-motive cases after Desert Palace, Inc. v. Costa
By Brian M. Peterson, Esq.
email
Bowles Rice McDavid Graff & Love, PLLC
Proving employment discrimination is not as hard as it used to be, thanks to the U.S. Supreme Court’s decision in Desert Palace, Inc. v. Costa. In Costa, the unanimous Court held that a Title VII plaintiff need not offer “direct evidence” of discrimination to earn a mixed-motive jury instruction at trial. The ruling will have a substantial impact on discrimination cases in the majority of circuits, where the direct evidence standard was well established.
Pretext vs. mixed-motive cases
Title VII has always prohibited employment practices that discriminate against people because of their race, color, religion, sex, or national origin. However, in proving intentional discrimination, plaintiffs have several options—they can pursue the pretext theory, the mixed-motive theory, or a combination of the two. The distinction between pretext and mixed-motive cases is critical, because it influences not only the standards of liability, but also the available remedies.
Historically, pretext cases have been more common than mixed-motive cases. Pretext cases take their name from the analysis developed in McDonnell Douglas Corp. v. Green, and Texas Dept. of Community Affairs v. Burdine. In pretext cases, the plaintiff seeks to prove that the defendant's proffered non-discriminatory reason for an adverse employment action was, in reality, a pretext for an unlawful motivation. Once the parties satisfy their relatively modest obligations under the now familiar McDonnell Douglas/Burdine framework for producing evidence, the trier of fact proceeds to decide the ultimate question: whether the plaintiff has proven that the defendant intentionally discriminated against him because of the protected characteristic. The burden of persuasion remains with the plaintiff throughout the analysis.
Although a plaintiff might not completely disprove the employer’s non-discriminatory reason, he may be able to show that both legitimate and illegitimate reasons motivated the employment decision. This is called the mixed-motive theory. In 1989, the Supreme Court first addressed the theory in Price Waterhouse v. Hopkins. In that case, the Court held that if a plaintiff satisfied the evidentiary threshold necessary to obtain mixed-motive treatment, he became entitled to a shift in the burden of persuasion. The employer could then avoid liability only by demonstrating that it would have reached the same decision absent any discrimination. Because of the shift in the burden of persuasion, the mixed-motive theory was clearly more advantageous for plaintiffs. Therefore, Justice O’Connor, in her concurring opinion in Price Waterhouse, concluded that the burden would shift only where the plaintiff could show by “direct evidence” that an illegitimate criterion was a substantial factor in the employment decision.
Apparently, Congress was not pleased that the courts were allowing employers who used illegal factors in employment decisions to avoid liability by merely showing that they would have made the same decision anyway even without considering the unlawful factor. So in 1991, it amended Title VII to modify the Price Waterhouse scheme, making mixed-motive treatment even more favorable to plaintiffs. Under the law as amended, an employer could no longer avoid liability by proving that it would have made the same decision for nondiscriminatory reasons. Instead, liability would attach whenever an unlawful motive was a motivating factor for any employment practice, even though other factors also motivated the practice. Thus, employers would violate Title VII when sex, race or some other unlawful factor played an actual role (however small) in an employment decision, regardless of other considerations that may independently explain the outcome. Proof by the employer that it would have reached the same determination without any discriminatory animus would, however, limit the remedies available to the plaintiff. In addressing the proof required to take advantage of the mixed-motive theory, the amendment stated that in order to shift the burden, the plaintiff must “demonstrate” that the employment practice was motivated by an illegitimate factor. The amendment was silent as to what type of evidence (direct, circumstantial, clear and convincing, etc.) the plaintiff needed to successfully demonstrate the illegal motivation.
Despite the 1991 amendment, many courts continued to use Justice O’Connor’s “direct evidence” standard in mixed-motive cases. For example in Fuller v. Phipps, 67 F.3d 1137 (4th Cir. 1995), the Fourth Circuit retained the “direct evidence” standard, requiring the plaintiff to proffer almost “smoking gun” evidence of conduct or statements that both reflected discriminatory animus and bore directly on the contested employment decision. The court reasoned that if the direct evidence standard were abandoned, “any plaintiff who is able to establish a prima facie showing in a pretext case would qualify for a mixed-motive instruction, conflating the two categories of cases and subverting the Supreme Court's efforts to distinguish the two theories.” The Courts of Appeals were divided on the issue, but the vast majority of circuits maintained some form of the direct evidence requirement.
The Decision in Costa
In Costa, the Supreme Court clarified that mixed-motive plaintiffs 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 the contested employment practice. In reaching this holding, the Court expressly rejected the heightened “direct evidence” standard, previously embraced by the Fourth Circuit and others. Instead, the Costa Court concluded that plaintiffs could use direct or circumstantial evidence to make the showing necessary to merit a mixed-motive instruction.
In Costa, the Court found that the plaintiff's circumstantial evidence of sex discrimination in a series of disciplinary actions ultimately ending in her termination sufficed to merit a mixed-motive instruction. The plaintiff, who was the sole female warehouse worker and heavy equipment operator for a Las Vegas casino, presented evidence that she had been subjected to “stalking” by one of her supervisors, harsher discipline than men for the same conduct, less favorable treatment than men in the assignment of overtime, stacking of her disciplinary record, and sex-based slurs from her supervisors. Although all of this evidence was circumstantial, the Court found that it provided a sufficient basis for a reasonable jury to conclude that sex had been a motivating factor in the employer's decisions to discipline and terminate her. Consequently, the Court affirmed the lower court's decision to grant the mixed-motive instruction.
The basis for the decision to reject the “direct evidence” standard is sound. Title VII, as amended, explicitly states that a plaintiff need only “demonstrate” that an employer used a forbidden consideration with respect to any employment practice. On its face, it does not mention that a plaintiff must make a heightened showing through “direct evidence.” Congress explicitly defined “demonstrates” as to “mee[t] the burdens of production and persuasion.” The Supreme Court held that circumstantial evidence is all that is needed. However, the term “direct evidence” does not mean the same thing to every judge. As the Second Circuit noted in Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir. 1992), “the various circuits have about as many definitions for ‘direct evidence’ as they do employment discrimination cases.” In some courts, direct evidence meant “smoking gun”-type evidence. To others, direct evidence simply meant evidence that is sufficient by itself to show discriminatory animus. While Costa clearly overruled the former standard, it seemed to affirm the latter.
The practical impact of Costa
It is not certain what new standard of proof will emerge from Costa. Clearly, the Court in Costa did not feel that by rejecting the “direct evidence” standard, it was merging the mixed-motive and pretext theories, as the Fourth Circuit suggested in Fuller. Even so, Costa does not provide any guidance as to what constitutes sufficient evidence to demonstrate discrimination and merit the mixed-motive instruction. Certainly, the plaintiff must produce a different quality of evidence than he is required to produce under the inferential McDonnell Douglas framework because Title VII requires the plaintiff to “demonstrate,” not merely infer, the employer’s use of an illegitimate criterion. The question, then, is what quality or quantum of evidence must the plaintiff show in order to earn a mixed-motive instruction at trial? Despite being presented with an opportunity to shed light on that question, the Fourth Circuit which recently confronted the issue declined to do so.
In Rowland v. Am. Gen. Fin., Inc., No. 01-2481 (4th Cir. 2003), a Title VII sex discrimination case, the Fourth Circuit reversed a defense verdict in favor of American General Finance, Inc., finding that the district court abused its discretion in denying the plaintiff's request for a mixed-motive jury instruction on her failure to promote claim. In doing so, the court was required to examine the plaintiff’s evidence without using its now-defunct “direct evidence” test.
At trial, Rowland provided evidence that her male supervisor, who knew of her qualifications for and interest in a district manager position but did not promote her, told her that he did not need any more women in the position that she sought. She also provided evidence of statements by another female superior suggesting that sex was a motivating factor in the employment decisions at American General. One such comment was “That's just life at American General. That's the way it is. The men run the company, and you just have to do what they say.” Despite such evidence, the district court refused to provide a mixed-motive instruction, and the jury rendered a defense verdict. Without discussing what its new post-Costa standard would be, the Fourth Circuit reversed and remanded, concluding that “[u]nder Costa, this evidence certainly suffices to merit a mixed-motive instruction.”
One might argue that even under the Fourth Circuit’s former “direct evidence” standard, Rowland’s evidence would have been sufficient for a mixed-motive instruction. The plaintiff’s supervisor’s comment both reflected discriminatory animus and bore directly on the contested employment decision. It remains unclear, however, what type or how much circumstantial evidence would be sufficient to demonstrate that an employer used a forbidden consideration with respect to an employment practice. Will it be sufficient, for instance, for a plaintiff to prove that various managers made sexist or racist comments about other employees in the workplace, then later took an adverse employment action against the plaintiff, or will the plaintiff still be required to show other incidents of disparate treatment, as the plaintiff in Costa showed? Until the courts establish a new standard, there will be significant difficulty in deciding how to classify a given case.
The need for bifurcation
The ambiguity in categorizing a disparate treatment case will present a difficult problem for employers at trial. Unless a trial is bifurcated into liability and damages phases, employers will have to undercut their own liability defenses by putting on evidence that even if they did consider the illegal factor, they would have made the same decision. To a jury, such arguments in the alternative sound like admissions. However, if the employer does not put on such evidence, it risks waiving its affirmative defense. To avoid placing employers in such a precarious position, the district courts could bifurcate the liability and damages phases of mixed-motive cases.
Trial courts have the discretion under Rule 42(c) of the Federal Rules of Civil Procedure to bifurcate the liability and damages phases of a trial. Bifurcation and the use of a special interrogatory during the liability phase would appear an appropriate method of avoiding prejudice to an employer. In a mixed-motive case, the shift in the burden of proof occurs only after a plaintiff has “demonstrated” that an impermissible consideration was a motivating factor. That burden is not shifted merely because the plaintiff has established a prima facie case or because he has shed doubt on the employer’s proffered reason for its decision. To the contrary, the statute requires that the trier of fact actually find the existence of an unlawful motivating factor.
Under the bifurcation approach, the plaintiff would be required at the pretrial to decide whether he intends to pursue a mixed-motive instruction. If so, the Court would bifurcate the case into liability and damages phases. At the completion of the liability phase, the jury could be given a special interrogatory asking whether it finds, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for the particular employment practice. If the jury answers no, then the trial is complete. If the jury answers yes, then the employer would be liable under the act, but could proceed to put on evidence supporting the affirmative defense, and both sides could present their evidence on damages. At the conclusion of the damages phase, the jury would be presented with another special interrogatory asking whether it finds, by a preponderance of the evidence, that the employer would have taken the same action in the absence of the impermissible motivating factor. If the jury answers yes, then its deliberations are complete, and the Court will award the appropriate declaratory relief, injunction, attorney fees and costs. If the jury answers no, then it would proceed in its deliberations to consider the full panoply of Title VII damages and make an award it deems appropriate.
Conclusion
The Costa decision will no doubt make mixed-motive cases more common. Courts will be less likely to grant summary judgment in employment cases where the employee, although unable to show pretext, has sufficiently strong circumstantial evidence of discrimination that might lead a jury to find that the employment decision was motivated, at least in part, by discrimination. Because the mixed-motive framework places employers in the precarious position of choosing between undercutting their liability defense or waiving their limited damages defense, the courts should bifurcate the liability and damages phases of discrimination trials where employees pursue the mixed-motive theory.
Brian M. Peterson, Esq.
Bowles Rice McDavid Graff & Love, PLLC
101 South Queen Street
Post Office Drawer 1419
Martinsburg, West Virginia 25401-1419
Phone: (304) 263-0836
Fax: (304) 264-4223
email: bpeterso@bowlesrice.com
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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