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In the Civil Rights Act of 1991, amending Title VII, Congress clarified, among other things, the standard for causation in the context of so-called “mixed-motive” cases. “Mixed-motive” cases are those cases where the evidence establishes that the employer was motivated both by discriminatory as well as non-discriminatory motives. The Civil Rights Act of 1991 provided that “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.” Although the Civil Rights Act of 1991 clarified the standard for a finding of causation where the plaintiff proved the existence of a “mixed motive,” the act was silent as to the type of the evidence that would satisfy this causation standard. There was a split in the circuits, with a number of courts of appeals holding that a plaintiff could establish the existence of a “mixed motive” only where the plaintiff proved the existence of a discriminatory motive by some form of “direct evidence.” On June 9, 2003, in Desert Palace Inc. v. Costa, the U.S. Supreme Court resolved this issue. The Court held that the Civil Rights Act of 1991 did not require the plaintiff to establish the existence of a “mixed motive” by “direct evidence” as a predicate to having the court deliver a “mixed-motive” jury instruction at trial. Rather, the Court held that circumstantial evidence of discrimination could provide a sufficient basis for the plaintiff to establish a “mixed motive” and to warrant a “mixed-motive” jury instruction. Accordingly, on this basis, the Court affirmed the decision of the U.S. Court of Appeals for the 9th Circuit, which upheld a jury verdict against an employer for unlawful sex discrimination against an employee whose employment had been terminated. In reaching this conclusion, the Supreme Court recognized that its holding departed from Justice Sandra Day O’Connor’s concurrence in Price Waterhouse v. Hopkins, a case decided prior to the enactment of the Civil Rights Act of 1991. Because many courts of appeals had been following Justice O’Connor’s concurrence from Price Waterhouse, Desert Palace establishes a new rule that will affect cases in a number of circuits. Here we analyze Desert Palace and several cases decided since June 9 that suggest how Desert Palace will affect federal anti-discrimination law. As we discuss below, while Desert Palace resolves a conflict that existed in the circuits, the Court’s analysis has raised a number of questions that undoubtedly will continue to challenge litigants and the courts. BACKGROUND It is well settled in federal anti-discrimination cases that, at all times, the plaintiff bears the burden of proof that an adverse employment action occurred because of unlawful discrimination. Perhaps the most common method courts have used to assess whether or not a discriminatory motive may be inferred is the “burden-shifting” method established in McDonnell Douglas Corp. v. Green. Under this method, a Title VII plaintiff must first establish a so-called “prima-facie case”; the employer then must articulate a legitimate, nondiscriminatory reason for the adverse employment action; and finally the employee has the opportunity to show that the proffered reason of the employer is false and merely a pretext for discrimination. Notwithstanding the momentary shift to the employer of this burden of articulating a legitimate, non-discriminatory reason under McDonnell Douglas, the plaintiff continues to bear the ultimate burden of proof on the issue of discriminatory intent. In contrast to the typical McDonnell Douglas “burden-shifting” framework, consider the hypothetical case where the plaintiff contends that the employer was motivated not only by unlawful discrimination, but also by lawful nondiscriminatory motives. In Price Waterhouse, the Supreme Court analyzed such a “mixed-motive” case under Title VII before Title VII was amended by the Civil Rights Act of 1991. A plurality of the Court held that an employer could avoid liability under Title VII if it could show that, even though an impermissible motive was involved in an employment action, the same decision would have been made regardless of that motive. The Court in Price Waterhouse provided no definitive holding, however, on the related issue of what kind of evidence was necessary to prove a “mixed-motive” case. Two years after the Price Waterhouse decision, Congress amended Title VII by passing the Civil Rights Act of 1991, partly in response to Price Waterhouse. Specifically, �107 of the Civil Rights Act of 1991 set forth new standards in mixed-motive cases by creating two new statutory provisions. The first provision states that a plaintiff may establish the existence of an unlawful employment practice if the plaintiff can show that unlawful discrimination was “a motivating factor,” even though other factors also motivated the practice. The second provision limited the employer’s defense that had been established in Price Waterhouse. Under this provision, if an employer can “demonstrate that [it] would have taken the same action in the absence of the impermissible motivating factor,” a plaintiff would not be allowed to obtain damages or an order requiring the employer to, among other things, reinstate, hire or promote the employee; however, the plaintiff could still obtain “declaratory relief, certain types of injunctive relief, and attorney’s fees and costs.” The Civil Rights Act of 1991 did not address specifically the nature of the evidence courts would require for a plaintiff to prove that an unlawful consideration motivated an otherwise lawful employment action. Because the act is silent on this issue, many circuit courts of appeals continued to rely on Justice O’Connor’s concurrence in Price Waterhouse to hold that a “mixed-motive” plaintiff must present “direct evidence” to establish liability. In Costa v. Desert Palace Inc., the 9th Circuit departed from this view and held that no form of “direct evidence” was required to make out a “mixed-motive” case. On Jan. 10, 2003, the Supreme Court granted certiorari to resolve the issue. ‘DESERT PALACE’ As with most anti-discrimination cases, Desert Palace Inc. v. Costa presents a relatively unique set of circumstances. Catharina Costa (Ms. Costa), a warehouse worker and heavy-equipment operator, brought suit under Title VII alleging discrimination on the basis of sex after she was fired by Caesars Palace Hotel and Casino (Caesars), a well-known Las Vegas hotel and casino. Ms. Costa was the only woman employed in her position at Caesars. As an employee, Ms. Costa had an escalating series of disciplinary problems. Finally, after Ms. Costa was involved in a fight in a warehouse elevator with a co-worker, Caesars fired her. While Ms. Costa admitted that her disciplinary issues were real and had played a role in her termination, she maintained that her sex was also a motivating factor. Specifically, Ms. Costa alleged that, as a woman, she received fewer overtime opportunities, was given harsher discipline than her male coworkers and was punished for failing to conform to sexual stereotypes. Ms. Costa brought suit in the U.S. District Court for the District of Nevada. After the district court denied Caesars’ motion for judgment as a matter of law, the jury was given a “mixed-motive” jury instruction and found in favor of Ms. Costa. The jury awarded Ms. Costa $64,377.74 in backpay, $200,000 in compensatory damages and $100,000 in punitive damages. The district court gave the following jury instruction, which became the centerpiece of Caesars’ later appeal: 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. At trial, Caesars unsuccessfully objected to the instruction on the grounds that Ms. Costa “had failed to adduce ‘direct evidence’ that sex was a motivating factor in her dismissal or in any of the other adverse employment actions taken against her.” On appeal, the Court of Appeals initially agreed, vacating and remanding the case back to the district court. After an en banc rehearing, however, the 9th Circuit reinstated the district court’s judgment. The en banc court disagreed with Caesars’ contention that “[Ms.] Costa should have been held to a special, higher standard of ‘direct evidence.’ ” The 9th Circuit instead found that “ Title VII imposes no special or heightened evidentiary burden on a plaintiff in a so-called ‘mixed-motive’ case.” In so construing the statute, the Court of Appeals held that Ms. Costa’s “evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that [Ms. Costa's] sex was a ‘motivating factor in her treatment.’ “ On review by the Supreme Court, Justice Clarence Thomas, writing for a unanimous Court, first noted that it did not need to address whether Justice O’Connor’s concurrence in the 1989 Price Waterhouse decision was controlling since the Civil Rights Act of 1991 superceded that case and provided the answer to the issue. Noting the judicial canon that where the words of a statute are clear, “the ‘judicial inquiry is complete,’ ” the Court first looked to the language of �2000e-2(m) of the 1991 Act and noted that it only requires “ a plaintiff [to] ‘demonstrate’ that an employer used a forbidden consideration with respect to ‘any employment practice.’ ” The Court determined that “ the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence.” Also, because Congress explicitly defined the term “demonstrates” in Title VII as to “meet the burdens of production and persuasion,” the Court reasoned that if Congress intended to impose a heightened evidentiary burden on Title VII plaintiffs, it would have explicitly done so, as it has done in other comparable statutes. The Court further noted that “circumstantial evidence” is often as probative as “direct evidence” and that it is even permitted in criminal cases where the burden of proof is much higher. Absent a contrary congressional indication, because the conventional rule of civil litigation and much Title VII litigation always has been that a plaintiff may prove his or her case through the use of “direct or circumstantial evidence,” the Court held there was no basis to find that a Title VII plaintiff should not be allowed to use either kind of evidence in a “mixed-motive” case. IMPACT ON COURTS At least one circuit court of appeals has recognized that Desert Palace required the reversal of a district court verdict in favor of the defendant because of the district court’s refusal to provide a “mixed-motive” jury instruction. In Rowland v. Am. Gen. Fin. Inc.,a sex discrimination case alleging a failure to promote, the U.S. Court of Appeals for the 4th Circuit held the plaintiff’s appeal in abeyance pending the outcome of the Supreme Court’s decision. Prior to Costa, the 4th Circuit, like various other circuit courts, had required a heightened “direct-evidence” standard for a plaintiff to receive a “mixed-motive” jury instruction. At trial, the jury found in favor of the defendant. The plaintiff then appealed the jury verdict on the grounds that the district court erred by not granting a “mixed-motive” jury instruction, as she had requested. The 4th Circuit noted that while the defendant claimed that the plaintiff was not promoted due to her lack of “people skills,” there was sufficient evidence for a jury to find that plaintiff’s sex may have also been a motivating factor in the defendant’s decision not to promote her. In vacating the district court judgment and remanding the case, the 4th Circuit found that the district court’s refusal to permit a “mixed-motive” jury instruction constituted reversible error. STRATEGIC CONSIDERATIONS The recent Desert Palace case resolved a split among the circuit courts regarding the types of evidence a plaintiff may use to obtain a “mixed-motive” jury instruction. However, courts and litigants are now beginning to argue about the meaning of the Desert Palace holding. For instance, a handful of federal district courts have suggested that the Supreme Court’s decision may impact “single-motive” cases, which have traditionally been analyzed under the McDonnell Douglas burden-shifting framework. Despite the views expressed by these decisions, a strong argument can be made that Desert Palace should have no effect on “single-motive” cases. Section 2000e-2(m) of Title VII states that “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.” Because Congress specifically used the term “other factors” in �2000e-2(m), an argument exists that Congress intended this statutory section to apply only to “mixed-motive” cases. Under this theory, had Congress wished to apply the �2000e-2(m) analysis to “single-motive” cases, Congress would simply have amended �2000e-2(a), which makes illegal employment actions taken “because of” race, gender or other impermissible factors. Therefore, Desert Palace, which only construed �2000e-2(m) in the context of “mixed-motive” cases, may be so limited. While several district courts and commentators have predicted that Desert Palace may impact how courts assess motions for summary judgment, in the first court of appeals decision reviewing a grant of summary judgment following Desert Palace, the U.S. Court of Appeals for the 8th Circuit held that the recent Supreme Court decision did not alter the outcome of the case. In Allen v. City of Pocahontas, the 8th Circuit affirmed summary judgment for the employer in an age and gender discrimination case. Noting the recent Desert Palace decision, the court held that “the result in this case remains the same �” as “[the plaintiff] has provided no evidence, direct or circumstantial, from which a reasonable jury could logically infer that age or gender was a motivating factor in her termination.” Although Desert Palace permits a plaintiff to prove discriminatory intent through the use of either “direct or circumstantial evidence” in a “mixed-motive” case, there may exist circumstances where, for strategic reasons, employers may seek a “mixed-motive” jury instruction. That situation may exist, for example, if the employer believes that it can benefit from the limited employer defense established by 42 USC �2000e-5(g)(2)(B) of Title VII. This defense provides that an employer can cut off “damages” or an “order requiring any admission, reinstatement, hiring, promotion, or payment” if it can show that it would have taken the same employment action without consideration of the unlawful motive. It should be noted, however, that if a plaintiff can establish by a preponderance of the evidence that discrimination was at least a “motivating factor” in the employment decision, the employer cannot escape all liability and could still be subject to “declaratory relief, certain types of injunctive relief, and attorney’s fees and costs.” Also, Desert Palace serves as yet another reminder to employers that they should continue to be vigilant in requiring appropriate documentation of adverse personnel actions, to promote adherence to written personnel policies and, where appropriate, to use progressive discipline. If an employer’s personnel actions are well documented, contemporaneous and in conformity with written policies, the employer will be in a strong position to respond to claims of employment discrimination. Jeffrey S. Klein is a partner and Nicholas J. Pappas is counsel to the firm in the litigation department at Weil, Gotshal & Manges where they practice labor and employment law. Philip Repash, an associate at the firm, assisted in the preparation of this article. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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