"mixed Motive" Discrimination Under the Civil Rights Act of 1991: Still a "pyrrhic Victory" for Plaintiffs? - Thomas H. Barnard and George S. Crisci

• Publication year: 2000

"Mixed-Motive" Discrimination Under the Civil Rights Act of 1991: Still a "Pyrrhic Victory" for Plaintiffs?by Thomas H. Barnard^* and

George S. Crisci^**

One of the many statutory changes brought about by the Civil Rights Act of 1991¹ involved an effort to overturn the United States Supreme Court's decision in Price Waterhouse v. Hopkins.² In that case, the Supreme Court held that when the plaintiff shows that an impermissible factor (e.g., race or gender) played a motivating role in an employment decision, the employer still can avoid liability by proving that it would have made the same employment decision in the absence of the impermissible factor.³

Congress responded by amending Title VII of the Civil Rights Act of 1964⁴ so that the employer can be found liable if an impermissible factor played a motivating role in the employment decision, even if the employer would have made the same employment decision in the absence of the impermissible factor; however, if the employer can prove that it would have made the same decision, then the employee cannot recover damages or gain reinstatement, hiring, or promotion.⁵ A court still could order declaratory or injunctive relief, and it may still award attorney fees to the employee as the prevailing party.⁶

While this amendment, in theory, would seem to benefit employees—or at least their attorneys, who now can recover their fees—it has, in practice, changed very little. In discrimination cases courts usually have refused to award attorney fees to the employee when the employer proves that it would have made the same employment decision absent the discriminatory motive and when injunctive relief is not necessary. Consequently, employers and employees effectively achieve the same result as if the case had been litigated under the Price Waterhouse analysis. For retaliation cases, the result has been even worse. Most courts, including every appellate court that has addressed the issue, have held that the 1991 Act does not overrule Price Waterhouse for retaliation cases. Thus, employees do not even get declaratory relief when they have been retaliated against, and the employer is completely exonerated from any liability.

This Article addresses the issue of mixed-motive discrimination and retaliation litigation in four parts. Part I briefly recounts the changes that the 1991 Act implemented. Part II discusses how the courts have addressed the issue of attorney fees when the employee proves that unlawful discrimination was a motivating factor in the adverse employment decision, but the employer proves that it would have reached the same decision in the absence of a discriminatory motive.

Part III discusses the conflict among the courts over whether the 1991 Act even applies to mixed-motive retaliation cases. Finally, Part IV presents the argument that the majority rule that has emerged for both issues represents a practical and sensible approach to employment discrimination and retaliation litigation.

I. The Civil Rights Act of 1991: Attempting to Change the Rules of Mixed-Motive Litigation

Until the 1991 Act went into effect, mixed-motive litigation was dictated by the Supreme Court's 1989 decision in Price Waterhouse. That case involved a Title VII gender discrimination claim in which both unlawful discrimination and legitimate nondiscriminatory reasons motivated the adverse employment decision. Borrowing by analogy from unlawful discrimination and retaliation cases under the National Labor Relations Act⁷ and retaliation cases under the First Amendment,⁸ the Supreme Court held that "an employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision regarding a particular person."⁹ Several appellate courts subsequently applied this principle to retaliation cases¹⁰ and cases brought under other discrimination statutes, such as the Age Discrimination in Employment Act.¹¹

As it did with several decisions that the Supreme Court handed down in 1989, Congress sought to overrule the holding in Price Waterhouse by including section 107 in the 1991 Act. Section 107(a) first addressed the standard for proving liability in mixed-motive cases by providing: "Except as otherwise provided in this subchapter, 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."¹² This language eliminated the affirmative defense to liability in discrimination cases that had been established in Price Waterhouse. Consequently, if the employee can prove that unlawful discrimination was one of several motivating factors, the employer would be liable even if it would have made the same adverse employment decision in the absence of the discriminatory motive.

Section 107(b) then revived the affirmative defense for purposes of determining the appropriate remedy when the employer proves that the same decision would have been made in the absence of the discriminatory motive:

On a claim in which an individual proves a violation under section 2000e-2(m) of this title [section 107(a) of the 1991 Act] and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—

(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in [42 U.S.C. Sec.2000e-5(g)(2)(A)].¹³

Thus, while section 107(a) of the 1991 Act imposes liability upon an employer whenever an adverse employment decision is motivated, at least in part, by unlawful discrimination, section 107(b) insulates that employer from damages and equitable relief other than injunctive relief if the unlawful discriminatory motive was not the determinative factor in the adverse employment decision. However, such employers still face the looming possibility of having to pay the employee's usually hefty attorney fees because the employee, unlike under the Price Waterhouse rule, is a prevailing party for purposes of collecting attorney fees.

II. Awarding Attorney Fees in Mdoed-Motive Discrimination Cases

Section 107(b) of the 1991 Act authorizes, but does not require, courts to award attorney fees to the "prevailing" employee in a mixed-motive discrimination case when the employer proves that the same adverse employment decision would have been made absent the unlawful discriminatory motive. Most courts have exercised their discretion in such instances by declining to award attorney fees or by drastically reducing the requested fee award.

A. The Majority Rule

The leading decision under the majority rule is the Fourth Circuit's decision in Sheppard v. Riverview Nursing Centre, Inc.¹⁴ In Sheppard the employee alleged that she had been laid off because of her pregnancy Five weeks after the lawsuit commenced, the employer offered, and the employee rejected, a $5000 settlement. The jury concluded that while the employee's pregnancy was a motivating factor in the layoff decision, the employer would have laid her off in any case for legitimate, nondiscriminatory reasons.¹⁵

The district court awarded the employee a declaratory judgment, denied injunctive relief because it found "insufficient danger of a continuing violation," and then awarded the employee $40,000 in attorney fees.¹⁶ The district court rejected the employer's argument that the employee was not entitled to attorney fees because she did not receive damages, reinstatement, or other injunctive relief.¹⁷ The district court reasoned that because section 107(b) already precluded monetary relief and most forms of equitable relief but allowed attorney fees, the availability of attorney fees would effectively be nullified if recovery of fees depended upon the degree to which the employee obtained relief.¹⁸

The appellate court, in a two-to-one decision, vacated the district court's ruling and remanded for further consideration.¹⁹ The court based its decision upon two reasons. First, the majority concluded that "tt]he district court apparently believed that an award of attorney's fees was mandatory in mixed-motive cases."²⁰ Noting that section 107(b) provides that a court may award attorney fees, the appellate court indicated that "[t]he word 'may' means just what it says: that a court has discretion to award (or not to award) attorney's fees."²¹ Noting further that section 107(b) also provides that a court shall not award damages or reinstatement, the majority commented that "[p]lainly, if Congress had wished to require recovery of attorney's fees, it would have provided that courts 'shall' grant fees instead of that they 'may' do so."²²

Second, the district court erroneously believed, according to the majority, that "concerns with the relationship between the fees and the degree of success achieved in the underlying litigation had no application here."²³ Rather, the district court should have considered the principles outlined in the Supreme Court's decision in Farrar v. Hobby.²⁴ In Farrar plaintiff sought $17 million in damages in a section 1983 case, but he received only nominal damages of one dollar and no injunctive or other equitable relief.²⁵ The Supreme Court held that while plaintiff was a prevailing party, and therefore eligible for attorney fees, any attorney fee award should be guided by considerations of proportionality.²⁶ Because plaintiff's success was minimal, the Supreme Court held that the only reasonable fee was "no fee at all."²⁷

The majority in Sheppard first addressed the district court's conclusion that Farrar was not applicable in Title VII mixed-motive...