by John Gause, Esq.
Published: Maine LAWYERS REVIEW, July 3, 2003 (updated 12/2013)
A pivotal decision comes along in employment discrimination about every fifteen years. In 1973, the Supreme Court gave us McDonnell Douglas Corp. v. Green, which created the bedrock framework for proving intentional discrimination with circumstantial evidence. In 1989, the Court handed down Price Waterhouse v. Hopkins, establishing the so-called “mixed-motive” case with a corresponding plaintiff-friendly standard of proof in the face of “direct evidence” of discrimination. On June 9, 2003, the Court decided Desert Palace, Inc. v. Costa.
Costa reworks the burdens of proof in mixed motive cases brought under Title VII of the Civil Rights Act of 1964 involving only circumstantial evidence. Specifically, plaintiff meets her burden in these cases when she demonstrates, with direct or circumstantial evidence, that her race, color, religion, sex, or national origin was “a motivating factor” in an adverse employment decision. In order to recover, plaintiff no longer needs to prove that her protected-class status was “the determining factor” in the decision.
The importance of Costa cannot be overstated. It will change the way motions for summary judgment and directed verdict are decided, and it will change jury verdicts. In both areas, plaintiffs will be more likely to succeed. Although employers will try to pigeonhole the holding to a single type of case, the mixed-motive case, the reality is that mixed-motives arise in nearly every intentional discrimination case there is. Therefore, Costa will change the burdens of proof in almost all Title VII cases from this point forward.
Title VII provides that employers cannot discriminate “because of” plaintiff’s race, color, religion, sex, or national origin. As it was originally worded, Title VII left the term “because of” undefined, which made it unclear whether the phrase meant solely because of, predominantly because of, partly because of, or something else. This became important in the context of cases involving more than one reason for an adverse job action. In these cases, did plaintiff need to prove that her protected-class status was the “but for” cause of the action, meaning it made the difference in the outcome, or could she recover if her protected class was merely one of multiple motivating factors, albeit not the determining one?
Before Costa, if plaintiff was relying solely on circumstantial evidence, she needed to prove that her protected-class status was “the determining factor” in the adverse job action. This meant that plaintiff had to prove that the illegal motivation was the “but for” cause of the employment decision. For example, if the evidence showed that both plaintiff’s sex and poor attendance were factors in her termination, she could win only if she proved that she would have been retained despite her poor attendance if she were a man.
In Price Waterhouse, Justice O’Connor’s concurrence created a distinction between the effect of direct and circumstantial evidence on the issue of causation. If plaintiff could point to “direct evidence” of discrimination, she only had to prove that her protected class played “a substantial role” in the decision–but not necessarily the determining one–and the burden shifted to defendant to prove that it would have taken the same job action without considering the protected-class status. Conversely, if plaintiff had no “direct evidence” she needed to prove “but for” causation to recover.
The Civil Rights Act of 1991, which amended Title VII, contained the provision that plaintiff could establish an unlawful employment practice if she demonstrated that her protected class “was a motivating factor for any employment practice, even though other factors also motivated the practice.” Notwithstanding the fact that this provision did not restrict itself to a particular type of evidence, the Circuit Courts of Appeals, excepting the Ninth Circuit, held that the “a motivating factor” standard only applied if plaintiff could point to “direct evidence” of discrimination.
Because of the exacting nature of the “direct evidence” requirement, plaintiffs were able to invoke the “a motivating factor” standard only in extraordinary cases. Although the term “direct evidence” has never been clearly defined, most formulations required some type of a “smoking gun.” In the First Circuit, plaintiff needed to elicit, “statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.” Under this standard, because most employers are smart enough to remain tight-lipped about illegal job actions, “direct evidence” cases have been extremely rare.
Costa wipes this slate clean. The Court made clear that the “a motivating factor” standard in the 1991 amendment applies in both direct and circumstantial evidence cases. Now, regardless of the type of evidence she presents, plaintiff wins if she shows that her race, color, religion, sex, or national origin was “a motivating factor,” albeit not necessarily the factor that made the difference. Defendant can limit plaintiff’s damages to declaratory relief, limited types of injunctive relief, and attorney’s fees by proving that it would have taken the same action even if the illegal reason had not factored into the decision, but plaintiff is entitled to some relief regardless.
The Court limited its holding to “mixed-motive” cases, although it did not rule out its application to other types as well, such as single-motive cases. A “mixed-motive” case is one in which more than one reason played a role in the employment decision. If both plaintiff’s gender and her attendance spurred her employer to fire her, for example, the case is properly characterized as involving mixed motives. This is contrasted with a single-motive case, in which the evidence only supports a finding of one reason for the job action.
Single-motive cases are the exception rather than the rule. In all but a tiny number of cases, employers will claim that they fired plaintiff for some reason other than the illegal reason alleged by plaintiff. Although plaintiff will usually attempt to poke holes in defendant’s proffered reasons, it is most often up to the fact finder to decide whether to believe plaintiff, defendant, or some combination of both. Although the jury may disbelieve defendant and find, for example, that plaintiff’s sex was the sole motivating factor in her termination, the jury could usually also reasonably find that both her sex and her attendance played a role.
In order for a case to be characterized as involving a single motive, the evidence must show that defendant’s proffered reasons and the alleged illegal reason are mutually exclusive, meaning a jury could not reasonably find that plaintiff was fired both for her sex and for poor attendance. It is difficult to imagine a fact pattern where this would happen. Accordingly, almost all cases will go to the jury involving mixed motives, and the Costa “a motivating factor” standard will have broad application.
Costa will be felt strongly at summary judgment and at directed verdict. Under the old standard, many cases were lost at these stages because plaintiff could not disprove defendant’s proffered reason for the adverse job action. For example, in Gonzalez v. El Dia, Inc., decided last year, the First Circuit granted summary judgment to defendant on plaintiff’s age discrimination claim because it held that plaintiff introduced insufficient evidence that defendant’s stated reason for terminating plaintiff, i.e., that she had worked for a competitor, was false. Plaintiff, who was 63 years old, had introduced comments by the decisionmakers that she had “old person’s ways,” and that she was old fashioned and “out of style.” When she suffered a severe work-related injury shortly before her termination, her supervisor had tried to convince her to retire, stating, “Look, you are already 63 years old and your health is not good.”
Now, at least in Title VII cases, plaintiff will survive summary judgment and directed verdict even if she cannot disprove defendant’s reason, as long as the rest of the evidence, direct and circumstantial, is sufficient to prove that the protected-class status was a motivating factor. The same types of evidence that have always been used to show animus are fair game, such as comments or writings reflecting prejudice or motive, the timing of the employment decision in relation to defendant’s awareness of the protected class status, and defendant’s treatment of others.
Costa will also have a profound effect in the jury room. Under the old standard, in the absence of direct evidence, defendant was given the benefit of the doubt if the jury could not decide which of several reasons actually made the difference in the employment decision. This was a tremendous advantage to employers because it is difficult to isolate a single reason as the deciding one when other legitimate reasons are in the mix. It used to be that juries would find for defendant if they could not decide whether plaintiff’s protected-class status was the determining cause. Now, plaintiff will get at least partial relief if a jury decides that the illegal reason was “a motivating factor” in the decision. Moreover, if it is impossible for the jury to weed out a determining cause from those presented, plaintiff gets full relief.
For Title VII purposes, it is now clear that the landscape has dramatically shifted in favor of plaintiffs. Nearly all Title VII intentional discrimination cases will benefit from the Court’s holding. Costa offers a refreshing break from the recent onslaught of pro-employer court decisions. And as it happens, Costa is the biggest case in a long time.