Mixed-motive Cases in Employment Discrimination Law Revisited: a Brief Updated View of the Swamp - Robert Belton

• Publication year: 2000

Mixed-Motive Cases in Employment Discrimination Law Revisited: A Brief Updated View of the Swampby Robert Belton^*

I. Introduction

In 1973 the Supreme Court enunciated an analytical framework in McDonnell Douglas Corp. u. Green¹ with the purpose of providing plaintiffs in statutory employment discrimination cases² a full and fair opportunity to prove intentional discrimination despite the unavailability of direct evidence.³ The McDonnell Douglas framework is used primarily in cases litigated under the disparate treatment theory of discrimination⁴ and is based upon presumptions and burden-shifting schemes.⁵ McDonnell Douglas was the predominant analytical framework for statutory employment discrimination cases until the Supreme Court decided Price Waterhouse v. Hopkins⁶ in 1989.

In Price Waterhouse the Court recognized for the first time a new analytical framework for disparate treatment cases. The new analytical model is the mixed-motive case. In a mixed-motive case, the evidence is sufficient to allow the factfinder to conclude, as a matter of fact, that an employer's employment decision was motivated by both lawful and unlawful reasons.⁷ The mixed-motive case is often contrasted with a single-motive pretext case,⁸ which is illustrated in McDonnell Douglas. The factual issue in a pretext case is whether either a lawful or an unlawful reason, but not both, was the motivation for the at-issue employment decision.⁹ However, the legislative history of Title VII is clear on the point that a plaintiff is not required to prove that discriminatory animus was the sole reason for an adverse employment decision.¹⁰

In Price Waterhouse the Court endorsed the same proof scheme for mixed-motive cases arising under Title VII that it previously had adopted in Mt. Healthy Board of Education v. Doyle.¹¹ Mt. Healthy was a mixed-motive employment case arising under the Constitution.¹² Under Price Waterhouse a plaintiff must first prove that an unlawful reason was a substantial or motivating factor in an employment decision.¹³ If the plaintiff carries that burden, then the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision absent reliance on the unlawful reason.¹⁴ The fundamental holding of Price Waterhouse is that, in a mixed-motive case, an employer can avoid liability by prevailing on the same-decision defense.¹⁵ After Price Waterhouse the majority of the lower courts sharply distinguished between the McDonnell Douglas and Price Waterhouse analytical frameworks.¹⁶

Congress overturned the fundamental holding of Price Waterhouse in the Civil Rights Act of 1991. Congress's decision to overturn Price Waterhouse and the language it adopted in doing so have created additional confusion in the long-standing debate about how to achieve equality in the workplace. McDonnell Douglas and Price Waterhouse stand at the apex of the debate.¹⁷ The Civil Rights Act of 1991, which overturns the fundamental holding of Price Waterhouse, further muddles the substantive and procedural swamp in employment discrimination law by raising a number of issues over which the courts are consistently inconsistent. Two of those issues are the subject of this Article.¹⁸ The first issue is whether the Civil Rights Act of 1991 erased the distinction between McDonnell Douglas and Price Waterhouse. The second issue concerns the reach and limits of a court's discretion to award make- whole and rightful place relief when employers are successful on the statutory same-decision defense.

This Article offers some observations on these two questions. It also briefly comments upon the developing law on mixed-motive cases under the Americans with Disabilities Act ("ADA").

II. McDonnell Douglas and Price Waterhouse: A Brief Overview

The difference between the burden-shifting frameworks of a McDonnell Douglas pretext case and a Price Waterhouse mixed-motive case has been the subject of a substantial amount of critical commentary¹⁹ —especially since St. Mary's Honor Center v. Hicks²⁰ and the enactment of the Civil

Rights Act of 1991. The mixed-motive category did not emerge as an analytical model in statutory employment discrimination cases until after the Supreme Court decided Mt. Healthy,²¹ even though the issue had been present in Title VII cases prior to Mt. Healthy.²² The predominant analytical model for the statutory cases prior to Mt. Healthy was the framework announced by the Supreme Court in McDonnell Douglas. After Price Waterhouse the courts tended to categorize employment discrimination cases as either pretext or mixed-motive cases, and the courts have treated these cases as essentially two mutually exclusive proof schemes in employment discrimination law.

In a pretext case, which the courts analyze solely under the McDonnell Douglas framework, once the plaintiff has established a prima facie case, the burden of going forward with the evidence shifts to the employer who must then articulate a legitimate nondiscriminatory reason for the adverse employment decision.²³ If the employer introduces evidence of a legitimate nondiscriminatory reason, the burden of production shifts back to the plaintiff who must show that the employer's proffered explanation is untrue or unworthy of credence.²⁴ At all times, the burden of proof or risk of nonpersuasion, including the burden of proving but-for causation or causation-in-fact, remains with the plaintiff.²⁵

A majority of courts addressing the issue have made a clear distinction between a McDonnell Douglas pretext case and a Price Waterhouse mixed-motive case on one key element.²⁶ Most courts have held that a plaintiff must introduce either direct evidence that the employer's decision was the product of discriminatory motivation or substantially more evidence than is required under the McDonnell Douglas framework.²⁷ If the plaintiff is fortunate enough to have evidence that falls under the direct evidence rubric,²⁸ then the employer has the burden of persuasion to prove that it would have made the same decision if the unlawful motivation played no role in the employment decision.²⁹ Under Price Waterhouse direct evidence of discriminatory motivation leaves the employer only the affirmative defense of same-decision or the argument that but-for cause or cause-in-fact has not been proved.³⁰

The significance of Price Waterhouse to the issue of whether the Civil Rights Act of 1991 erased the distinction between direct and pretext (or circumstantial) evidence lies primarily in Justice O'Connor's concurring opinion. Justice Brennan stated the holding for only a plurality of the Court. The plurality's statement of the holding is substantively different from what Justice O'Connor deems the holding to be. Nothing in Justice Brennan's plurality opinion suggests that a plaintiff must present direct evidence to shift the burden of proving same-decision to the employer. In fact, Justice Brennan stated that simply because he had focused on the specific evidence Hopkins had introduced, he was not suggesting a limitation on the nature of the evidence a plaintiff may rely upon to prove the motivating factor element.³¹ Justice O'Connor, on the other hand, endorsed the view that direct evidence is required in mixed-motive cases.³² Although she stated that the rule announced in Price Water-house should be viewed as a "supplement to the careful framework established" in McDonnell Douglas, it is clear that Justice O'Connor advocated an extremely high evidentiary standard for plaintiffs in mixed-motive cases.³³ She succeeded in drawing a bright-line distinction between the circumstantial and mixed-motive cases with her direct evidence standard.

A frequently overlooked line of reasoning in Justice O'Connor's opinion in Price Waterhouse, on which her direct evidence rule is grounded, is based on her construction of section 703(j) of Title VII:

Finally, I am convinced that a rule shifting the burden to the defendant where the plaintiff has shown that an illegitimate criterion

was a "substantial factor" in the employment decision will not conflict with other congressional policies embodied in Title VII. Title VII expressly provides that an employer need not give preferential treatment to employees or applicants of any race, color, religion, sex, or national origin in order to maintain a work force in balance with the general population. See 42 U.S.C. Sec. 2000e-2(j). The interpretive memorandum, whose authoritative force is noted by the plurality, specifically provides: "There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or refuse to hire on the basis of race."³⁴

She then cited her plurality opinion in Watson v. Fort Worth Bank & Trust,³⁵ a Title VII disparate impact case.³⁶ In Watson she relied substantially on section 703(j) to promulgate a very high evidentiary threshold that a plaintiff must satisfy not only to establish a prima facie case of disparate impact discrimination, but also to ultimately prove liability.³⁷

Justice O'Connor's view that the reality of societal discrimination should not influence, in any way, the rules and doctrines courts adopt in interpreting laws prohibiting either constitutional or statutory discrimination is well known.³⁸ The direct evidence standard that Justice O'Connor adopted in Price Waterhouse incorporates into statutory employment discrimination cases her interpretation of section 703(j) that the courts must turn a blind eye to societal discrimination in formulating rules and doctrines.

III. Legislative Response to Price Waterhouse

Congress amended Title VII in the Civil Rights Act of 1991 against the backdrop of McDonnell Douglas, Mt. Healthy, and Price Waterhouse by adding, among other...