Supreme Court holds direct evidence not necessary …
Supreme Court holds direct evidence not necessary to obtain mixed motive instruction under Title VII
In Desert Palace, Inc. v. Costa, (6/9/03), the Court interpreted §107 of the Civil Rights Act of 1991, which provides: “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” The Act also provides that once an unlawful employment practice is established, the employer may avoid all remedies except declaratory relief, certain types of injunctive relief, and attorney’s fees and costs by proving it “would have taken the same action in the absence of the impermissible motivating factor.”
The Courts of Appeals had been divided over whether proof that an impermissible consideration was a “motivating factor” had to consist of direct evidence (the proverbial “smoking gun”), or whether circumstantial evidence would be sufficient. In Desert Palace, the Court unanimously held the latter.
Presumably, the Court’s unusual unanimity — with respect to both result and rationale — is attributable to the fact that the direct evidence requirement the Court rejected was supported only by a Supreme Court case that preceded the Civil Rights Act of 1991 and provided part of the motivation to Congress for passing it. This allowed the Court to adopt a simplistic plain language interpretation of what it viewed as a statute clearly abrogating the prior case.
The Court stated: “where, as here, the words of the statute are unambiguous, the judicial inquiry is complete. . . . Section [107] unambiguously states that a plaintiff need only ‘demonstrat[e]‘ that an employer used a forbidden consideration, . . . [and] on its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence.”
The approved jury instruction stated:
“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.”
How will this decision play out? I have yet to see anything in depth by legal commentators, but as I anticipated, the lay press has already declared it an unmitigated victory for employment discrimination plaintiffs. See: “Justices Ease Way for Workers in Discrimination Suits” (New York Times); Ruling Seen Aiding Bias Claims (AP story in Boston Globe).
It seems that a key to how disadvantageous this decision is for employers will be how it is integrated into the established McDonnell-Douglas standard for establishing discrimination through circumstantial evidence. The article in the Times says the Ninth Circuit had rejected the employer’s argument that the plaintiff “should have been required to meet a higher burden of proof by showing that the stated reason for her dismissal was a pretext for discrimination.” It seems that if she had no direct evidence, and the employer presented a nondiscriminatory reason, then she had to prove pretext — and only then would the jury properly be able to conclude that her sex was a motivating factor and view the employer’s evidence in light of a shifted burden.
I would argue that fairness demands that the above instructions be accompanied by an instruction on circumstantial evidence and pretext. Furthermore, special verdict forms should direct the jury to first determine whether the employer’s stated reason was not the sole reason and whether sex was a motivating factor — before addressing whether the employer proved it would have treated her similarly had she been a man.
Additionally, having the mixed motive instruction in every circumstantial evidence case — which seems to follow from this decision — is not without benefit for employers. It will facilitate jury arguments giving the employer one last chance to salvage a case. For example, in Desert Palace, the plaintiff had been terminated for fighting. The employer could argue that even if the jury finds the decision maker was biased against the plaintiff because of her gender, and this played a role in the decision, she was involved in a fight, which was a serious infraction that would have resulted in termination regardless of gender.
The problem unaddressed by the court in Desert Palace is that if there is no direct evidence, for the jury to find that gender bias was a motivating factor, it would typically have to reject the employer’s stated reason, thereby finding the employee would not have been terminated regardless of gender, at which point the affirmative defense would be useless. There seems to be an inherent conflict — ignored by the Court in Desert Palace – between the insistence in McDonnell-Douglas that the burden of proof of discrimination is always on the plaintiff and the shifting of the burden under the Civil Rights Act of 1991. Theoretically, the burden could be shifted through circumstantial evidence, but by that point the employer’s affirmative defense would have likely been blown away, through the necessary proof of pretext. Thus the bottom line seems to me to be that this case may be of little practical significance, other than making jury instructions more confusing for everyone–lawyers, judges, and jurors.
