by John Gause, Esq.
Published: Maine LAWYERS REVIEW, July 1, 2004
It has been a year since the Supreme Court decided Desert Palace v. Costa, which held that “direct evidence” is no longer required to get a mixed-motive jury instruction under Title VII of the Civil Rights Act of 1964 (Title VII). While the Supreme Court largely cleared up a growing wave of confusion in these cases, questions remain. One such question is whether Desert Palace applies to more than just mixed-motive cases.
Catharina Costa brought her lawsuit after she was fired as a warehouse worker and heavy equipment operator purportedly for engaging in a fist-fight with a male coworker. She was the only woman in her job. The man who was involved in the fight was given a short suspension despite strong evidence that he started it. Costa alleged that she was fired because she is a woman, in part because of this incident, and also because of a pattern of excessive discipline, unequal overtime, and an ongoing barrage of sexual epithets and stereotyping.
Costa could not, however, point to “direct evidence” of discrimination because of her sex. There were no statements by a decisionmaker that directly linked sex animus to her termination. Under the old view, this meant that Costa would have had to prove that her sex was “the determining factor” in her termination, meaning she had to show that she would not have been terminated “but for” the fact that she is a woman. But the district court judge instructed the jury that Costa only needed to show that her sex was “a motivating factor” in the adverse employment action; and he instructed that the burden fell on Desert Palace to show that it would have fired Costa even if it had not considered her sex. The jury returned a verdict for Costa for $364,000.
The instruction the judge gave was a classic so-called “mixed-motive” jury instruction, which had previously been reserved for cases involving “direct evidence” of discrimination. “Direct Evidence” in the First Circuit Court of Appeals means a smoking gun: “statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.” It almost never exists.
On appeal, the Supreme Court held that the district court judge gave the right instruction despite the absence of “direct evidence.” The reason is that the provision that added the “a motivating factor” standard to Title VII, 42 U.S.C. § 2000e-2(m), also known as § 107 of the Civil Rights Act of 1991, is silent on the character of evidence necessary to invoke it. The Court held that § 107 applies equally to both circumstantial and direct-evidence cases.
Yet the Supreme Court was careful to point out that it was not deciding when, if ever, § 107 applies outside of the context of mixed-motive cases. A mixed-motive case is one in which both legitimate and unlawful factors played a role in the adverse employment action. For example, employer fires worker both because of her sex and because she missed too much time from work. Likewise, the Court did not delineate the parameters of a mixed-motive case if it is a prerequisite to invoking § 107. That is, does a mixed motive arise only when one side concedes the existence of legitimate and unlawful reasons for termination, or is it enough that the evidence supports both reasons even though they are disputed?
Different approaches have emerged with respect to these issues. In Dare v. Wal- Mart Stores, Inc., the United States District Court for the District of Minnesota held that § 107 applies to all cases, regardless of whether they involve mixed motives. This is because the court read the final phrase in § 107, “even though other factors also motivated the practice,” as being permissive rather than restrictive, meaning that although it contemplates the possibility of more than one reason for the adverse job action it does not require that they be there. Accordingly, every case will qualify for the “a motivating factor” standard.
Another approach is that § 107 applies only to mixed-motive cases, but a mixed motive arises when the evidence supports more than one reason for an adverse employment action, even though neither side necessarily concedes the truth of the reason offered by its opponent. Thus, under this view, a mixed-motive arises almost every time defendant proffers a legitimate reason for an adverse employment action together with a sufficient showing by plaintiff that her protected-class status was “a motivating factor” in the decision.
This method appears to be followed by the United States Court of Appeals for the Ninth Circuit and the United States Court of Appeals for the Fourth Circuit. In the Fourth Circuit case, Rowland v. American General Finance, Inc., the court applied Desert Palace where defendant claimed that plaintiff was not promoted due to a lack of people skills and plaintiff alleged that it was due to her being a woman, but plaintiff did not concede that a lack of people skills factored into the decision.
The narrowest view is that § 107 applies only to mixed-motive cases, and it restricts mixed-motive cases to those in which at least one side concedes the existence of two reasons for the adverse employment action, one legitimate and one unlawful. Here, either plaintiff must agree that employer had a legitimate reason for her termination—that acted in concert with the unlawful one she alleges—or employer must admit that it was motivated in part by plaintiff’s protected-class status, together with the legitimate reason it alleges. These cases are rare because, usually, neither plaintiff nor defendant wants to take the risk of conceding that the other side is even partially correct.
Another possibility is that § 107 only applies when plaintiff concedes the underlying facts supporting employer’s explanation for the adverse employment but does not necessarily concede that employer was motivated by them. For example, in a case where employer alleges that plaintiff was fired for absenteeism, § 107 would only apply if plaintiff admits that she missed several days from work although she does not concede that employer terminated her for that reason. In Desert Palace, plaintiff did not dispute that she had engaged in the conduct that led to her discipline in the past, but she did not admit that employer was motivated by that conduct when it decided to fire her.
The First Circuit Court of Appeals and the United States District Court for the District of Maine have not yet addressed the post-Desert Palace issue of whether § 107 is limited to mixed-motive cases, and, if so, what constitutes a mixed-motive case. Plaintiffs will certainly urge the courts to follow the Dareapproach because it will result in the broadest application of the favorable “a motivating factor” standard. This view makes sense given the plain language of the statute. Also, the Supreme Court made clear that courts should not be reading more into § 107 than is already there. Defendants, on the other hand, will argue for the most restrictive approach, which requires one side to concede the existence of the other side’s reason.
Regardless of whether a court requires the presence of mixed-motives to invoke § 107, there is no sound basis for requiring one side admit that both legitimate and unlawful reasons factored into the adverse employment action. We should be looking at the vantage point of the jury when we are determining whether sufficient evidence of mixed motives exists. If there is sufficient evidence to support each position, even if it is disputed, a jury would be permitted to believe that more than one reason factored into the decision. For example, if plaintiff offers sufficient evidence that her sex was “a motivating factor” in her termination, and defendant offers sufficient evidence that it fired plaintiff because of excessive absenteeism, the jury could reasonably believe that both factors influenced the decision regardless of whether plaintiff or defendant concedes the validity of the other side’s claim.
This is only one of the issues that lower courts are wrestling with in the aftermath of Desert Palace. Others include the extent to which the burden-shifting paradigm in McDonnell Douglas is still viable and whether the holding of Desert Palace will be extended to other anti-discrimination laws such as the Americans with Disabilities Act and the Age Discrimination in Employment Act. More on those to follow.