Today the Supreme Court issued a unanimous decision making it easier for plaintiffs to prevail in employment cases by proving that discriminatory considerations were a factor – albeit not the sole or primary factor – in adverse employment decisions. Desert Palace, Inc., DBA Caesars Palace Hotel & Casino v. Costa, No. 02-679, slip op. (June 9, 2003).
Title VII was amended in 1991 to provide 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.” 42 U.S.C. § 2000e-2(m). When a plaintiff proves a violation under this section, but the employer proves it “would have taken the same action in the absence of the impermissible motivating factor,” then the plaintiff can receive attorneys fees and certain types of injunctive relief, but is not entitled to money damages or reinstatement. 42 U.S.C. § 2000e-5(g)(2)(B).
Catharina Costa was a warehouse worker at Ceasar’s Palace. She had a series of difficulties with her managers and co-workers, culminating in a physical altercation that led to her termination. At trial, Costa offered evidence that she had been subjected to sex discrimination in the course of her employment, and contended that her sex had been a factor in her termination too. The district court instructed the jury that “[i]f you find that the plaintiff’s sex was a motivating factor in the defendant’s [termination] 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.” Slip op. at 5. The jury ruled for the plaintiff. On appeal, the employer relied on Justice O’Connor’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) – issued prior to the 1991 amendments to Title VII – to argue that the instruction should not have been given because plaintiff had no “direct evidence” of discrimination, such as a discriminatory statement made in the course of the termination decision. The Ninth Circuit rejected the argument, creating a split with at least four other courts of appeals.
In affirming the Ninth Circuit, the Supreme Court ruled that "direct evidence" was not necessary for plaintiffs to obtain "mixed-motive" instructions in Title VII cases. "Section 2000e-2(m) unambiguously states that a plaintiff need only 'demonstrat[e]' that an employer used a forbidden consideration with respect to 'any employer practice.' On its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence." Slip op. at 8. The Court noted that in other instances where Congress intended heightened evidentiary requirements, it clearly said so. Id. Moreover, the law generally "'makes no distinction between the weight or value to be given to either direct or circumstantial evidence.'" Slip op. at 9 (citation omitted). In sum, "In order to obtain an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that "'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" Slip op. at 11 (citation omitted).
Justice O’Connor filed a short concurring opinion explaining that the 1991 amendments to Title VII "codified a new evidentiary rule for mixed-motive cases," thereby superseding her earlier opinion in Price Waterhouse.
Today's decision reflects the Supreme Court’s recent tendency to stick closely to the text of Title VII when articulating procedural rules for discrimination cases, even when the Court’s prior decisions appear to point in a different direction and when the consequence could be more issues going to the jury. The decision will increase the use of “mixed-motive” jury instructions, since employment cases by their nature feature a plaintiff offering purported evidence of discrimination, and a defendant proffering other, non-discriminatory reasons for the challenged employment action.
This article has been prepared for general informational purposes only and is not intended as legal advice.
Copyright © 2003 Gibson, Dunn & Crutcher LLP
