by John Gause, Esq.
Published: Maine LAWYERS REVIEW, November 25, 2004
My last article on the Supreme Court decision Desert Palace v. Costa focused on whether Desert Palace applies beyond traditional “mixed-motive” cases. I concluded that the soundest approach was to apply Desert Palace, at a minimum, whenever sufficient evidence is present for a jury to conclude that more than one factor motivated an adverse employment action. Because defendant almost always articulates a nondiscriminatory reason for an adverse employment action, almost every Title VII case will be controlled by Desert Palace.
Another issue courts have been addressing is whether Desert Palace alters or eliminates the McDonnell Douglas framework for proving unlawful employment discrimination with circumstantial evidence. The United States District Courts are divided on this issue, and the Circuit Courts of Appeals are currently split. The current minority view is the correct one. Because Desert Palace reworks the burdens of proof in Title VII cases, McDonnell Douglas is no longer a useful tool for proving unlawful Title VII discrimination, and it should be discarded.
Again, Desert Palace held that plaintiffs can rely on circumstantial evidence alone to take advantage of § 107 of Title VII of the Civil Rights Act of 1964. Under § 107, Title VII is violated if plaintiff proves that her protected class “was a motivating factor for any employment practice, even though other factors also motivated the practice.” If plaintiff makes this showing, the burden of persuasion shifts to defendant to prove that it would have made the same decision even if it had not considered plaintiff’s protected-class status. If defendant meets its burden, plaintiff still wins, but her recovery is limited. If defendant does not meet its burden, plaintiff is entitled to full relief.
Prior to Desert Palace, courts interpreted § 107 as only applying if plaintiff could show “direct evidence” of unlawful discrimination. In the First Circuit Court of Appeals, “direct evidence” was limited to “statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.” An example would be a boss saying, “I fired her because she is a woman.” Without this type of direct evidence, § 107 did not apply, and plaintiff had to prove that her protected-class status was “the determining” or “but for” cause of the adverse job action. The way she did this was to use theMcDonnell Douglas burden-shifting paradigm.
McDonnell Douglas Corp. v. Green was decided by the Supreme Court in 1973. Under McDonnell Douglas , plaintiff must first establish a prima-facie case, which varies depending on the circumstances, but it usually includes evidence that plaintiff is in a protected class, that she was qualified for the position, and that she suffered an adverse job action. The burden then shifts to defendant to articulate a legitimate, nondiscriminatory reason for its decision. Plaintiff then bears the ultimate burden of proving that defendant’s proffered reason is false and that the real reason was unlawful discrimination.
Because Desert Palace holds that § 107 applies equally to circumstantial and direct-evidence cases, plaintiff is no longer required to prove that her protected-class status was “the determining” or “but for” cause of the adverse employment action, even if she lacks direct evidence. Rather, she only needs to show that her protected-class status was “a motivating factor” in the decision. The question thus becomes whether McDonnell Douglas continues to be useful in Title VII circumstantial-evidence cases when the goal is no longer to find the causal factor that made the difference in the outcome; all that is necessary is that it played a motivating role in the outcome.
Lower courts have disagreed over whether McDonnell Douglas is still viable, and, if so, to what extent. One line of thought originated in Dare v. Wal-Mart Stores, Inc., where the United States District Court for the District of Minnesota held that McDonnell Douglas is obsolete in Title VII cases. The court noted that, under § 107 as interpreted by Desert Palace, plaintiff is not required to show that the reason offered by defendant is false, which is at the heart of McDonnell Douglas. Rather, plaintiff wins if she shows that her protected-class status was “a motivating factor” in the employment decision even if defendant’s reason is also true. Thus, the court held that it is never appropriate to use McDonnell Douglasin a Title VII case because it would place a higher burden of proof (showing pretext) on plaintiff than is required by the statute.
Other courts have been reluctant to let go of McDonnell Douglas completely, and they have followed Dunbar v. Pepsi-Cola, decided by the United States District Court for the Northern District of Iowa. That court held that McDonnell Douglas is still useful, albeit in a different form. Plaintiff must still prove a prima-facie case, which shifts the burden of production onto defendant to come forward with a legitimate reason for the adverse employment action. McDonnell Douglas is altered at this point, however: “After the defendant produces a legitimate, nondiscriminatory reason for its conduct, the plaintiff must prove by a preponderance of the evidence either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination, or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic.”
The two Circuit Courts of Appeals decisions to squarely address the issue areGriffith v. City of Des Moines, an Eighth Circuit decision, and Rachid v. Jack in the Box, Inc., a Fifth Circuit decision. In Rachid, the Fifth Circuit adopted the modified McDonnell Douglas approach articulated in Dunbar.
In Griffith, incredibly, the Eighth Circuit held that “Desert Palace had no impact on prior Eighth Circuit summary judgment decisions.” The court reasoned that Desert Palace involved the post-trial issue of whether to give a § 107 jury instruction, and, as such, it was not applicable to cases decided at summary judgment. The court reinstituted its long-standing requirement that plaintiff show “direct evidence” of unlawful discrimination before she can use § 107. In all other cases, the traditional McDonnell Douglas test will apply. Both Dare andDunbar will be altered by Griffith, as they are in the Eighth Circuit.
A dissenting judge challenged the notion that a different standard should apply at summary judgment than at trial: “This approach requires the plaintiff to prove at summary judgment that an invidious characteristic was the but-for cause of the employment action, but then at trial only requires the plaintiff to prove that this characteristic was a motivating factor in the employment decision. . . . It is absurd to require the plaintiff to satisfy a higher burden at summary judgment when the lesser burden is all that is required under the statute.” The dissent would have dispensed with McDonnell Douglas altogether.
Although a few cases in the First Circuit Court of Appeals and the United States District Court for the District of Maine have addressed Desert Palace , none has squarely decided whether McDonnell Douglas remains viable. Accordingly, the issue is still open in Maine.
So which approach makes the most sense? The majority view is to followDunbar , but applying any form of McDonnell Douglas after Desert Palaceis problematic. The dissent in Griffith pointed out that the Dunbar approach of modifying McDonnell Douglas to allow plaintiff to choose between showing pretext and showing “a motivating factor” is flawed because “the plain language of the statute only requires the plaintiff to prove that discrimination was a motivating factor. It is ridiculous for courts to adopt a scheme that provides a plaintiff the option to prove something more than what the statute actually requires for liability.”
Moreover, the Dunbar modified McDonnell Douglas test still requires plaintiff to establish a prima-facie case, which is inconsistent with § 107. To satisfy the prima-facie case, plaintiff must be qualified to perform the employment position in question, yet plaintiff does not need to be qualified in order to state a violation of § 107. For example, a female applicant is rejected for employment in part because she lacks an advanced degree, which is admittedly required for the position. The decision maker says plaintiff was rejected because she lacked the degree and because she is a woman. This states a violation of § 107 because plaintiff’s gender was “a motivating factor” in the decision, albeit together with her lack of qualification.
This type of case cannot be reconciled with even the Dunbar modifiedMcDonnell Douglas framework. Yet to somehow exempt it will perpetuate the dichotomy between direct and circumstantial evidence, a practice that was repudiated by the Supreme Court in Desert Palace. The Supreme Court was pellucid that having different standards for direct and circumstantial evidence is inconsistent with the plain language of Title VII and with its jurisprudence in general: “The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’”
The only way to embrace the holding in Desert Palace is to stop usingMcDonnell Douglas rather than trying to retrofit it. Plaintiff should be allowed to use whatever evidence is at her disposal to attempt to prove that her protected-class status was “a motivating factor” in an adverse employment action. If she chooses to do so, she can attempt to show pretext, which, together with other evidence, may give rise to an inference of unlawful discrimination. But the absence of pretext, or of a prima-facie case, should not foreclose plaintiff from meeting her overall burden.
One final point. A lack of consensus is no reason to keep McDonnell Douglas.Desert Palace v. Costa itself reminds us that an unpopular view can be the right one. The lower court decision in Desert Palace was the first time that a court held that § 107 applied equally to circumstantial and direct-evidence cases. This is despite the fact that § 107 was added to Title VII in 1991, and countless subsequent decisions reached the contrary (and incorrect) conclusion that circumstantial and direct evidence cases should be treated differently.
Another lurking issue is whether Desert Palace applies beyond Title VII. The Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Maine Human Rights Act all lack a corresponding provision to § 107. Therefore, the question becomes whether Desert Palace changes the framework for proving unlawful discrimination under those laws. More on that to follow.