Mixed-motives for Firing Employees: Alaska's Inconsistent Standards and Its Failure to Follow the Changing Federal Tide

• Publication year: 2007

§ 24 Alaska L. Rev. 287. MIXED-MOTIVES FOR FIRING EMPLOYEES: ALASKA'S INCONSISTENT STANDARDS AND ITS FAILURE TO FOLLOW THE CHANGING FEDERAL TIDE

Alaska Law Review
Volume 24
Cited: 24 Alaska L. Rev. 287

MIXED-MOTIVES FOR FIRING EMPLOYEES: ALASKA'S INCONSISTENT STANDARDS AND ITS FAILURE TO FOLLOW THE CHANGING FEDERAL TIDE

BRIANNE SCHWANITZ ^[*]

I. INTRODUCTION

II. THE FEDERAL FRAMEWORK

A. Pretext Cases

B. Mixed-Motive Cases

C. Civil Rights Act of 1991

D. Problems Decoding the Direct Evidence Requirement

E. The Death of the Direct Evidence Requirement

III. ALASKA'S MIXED-MOTIVE CASE LAW

A. In Support of Direct Evidence: VECO, Inc. v. Rosebrock and Era Aviation, Inc. v. Lindfors

B. Relaxing the Standard: Sengupta v. University of Alaska and Kinzel v. Discovery Drilling, Inc.

C. Raising the Evidentiary Bar: Reust v. Alaska Petroleum Contractors, Inc. and Mahan v. Arctic Catering, Inc.

D. Alaska's Mixed-Motive Case Law Is Internally Inconsistent

IV. ALASKA CASE LAW IN RELATION TO FEDERAL LAW

A. Alaska's Mixed-Motive Case Law Was Initially Consistent with the Federal Case Law

B. Recent Alaska Case Law Has Failed to Follow the Federal Law

C. Alaska Should Recognize the Change Heralded by Desert Palace

V. CONCLUSION

FOOTNOTES

In Desert Palace v. Costa, the United States Supreme Court resolved much of the confusion that arose following its decision in Price Waterhouse v. Hopkins, which concerned the appropriate evidentiary standard to apply in mixed-motive employment discrimination cases. This Note suggests that Alaska's mixed-motive case law has diverged from the federal case law and has not yet established an internally consistent evidentiary requirement. This Note also suggests that by recognizing the Desert Palace decision, the Alaska Supreme Court may simultaneously realign itself with federal law and resolve the ambiguity within its own case law.

[*pg 288]

I. INTRODUCTION

The Civil Rights Act of 1964 was enacted to combat racism by prohibiting discrimination in a number of contexts including voting (Title I), ^[1] public accommodation (Title II), ^[2] public schools (Title III), ^[3] and federally funded programs (Title IV). ^[4] Title VII of the Act was designed to ensure equal opportunity in the context of private employment. ^[5] Since its enactment, Title VII has served as a model for civil rights legislation in many states, ^[6] including the Alaska Human Rights Act (AHRA). ^[7] One issue surrounding Title

[*pg 289] VII, the AHRA, and other state employment discrimination statutes is the issue of mixed-motives for firing employees. Federal and state courts alike have struggled to deal with cases in which an employer bases an employment decision on a mixture of discriminatory and legitimate factors. Historically, one particular point of contention has been the type of evidence a plaintiff must produce in order to make use of the so-called "mixed-motive" framework.

While the United States Supreme Court addressed the evidentiary issue in mixed-motive cases head-on in Desert Palace, Inc. v. Costa, ^[8] Alaska courts have not followed suit. The Alaska Supreme Court has spent the past decade flip-flopping over what evidentiary standard is required, all the while purporting to adhere to a consistent standard mirroring federal case law. In fact, nothing could be further from the truth. With each mixed-motive case Alaska courts have decided, they have moved further from the federal standard and from internal consistency. In recent years, the Alaska Supreme Court has relied on the direct evidence requirement, despite its own precedent to the contrary and Desert Palace, which abandoned such a requirement. Because the Alaska Supreme Court claims to use Title VII to interpret the AHRA, ^[9] it is even more perplexing that the court has failed to recognize the change heralded by Desert Palace on not one, but three separate occasions.

Part II of this Note describes the federal framework, outlining how the evidentiary standard for mixed-motive cases has changed over time. Part III summarizes and analyzes the relevant Alaska case law on mixed-motive discrimination. It claims that Alaska case law, although internally inconsistent, holds plaintiffs to a higher evidentiary standard than does the federal case law. Part IV demonstrates how Alaska case law has diverged from federal case law and suggests that Alaska courts should abandon their reliance on direct evidence and follow the federal precedent.

II. THE FEDERAL FRAMEWORK

Title VII makes it unlawful for employers to rely on certain illegitimate factors when making employment decisions, ^[10] but the

[*pg 290] language is less clear as to what degree of reliance amounts to an unlawful employment practice. ^[11] Two different lines of cases have emerged. In pretext cases, an illegitimate factor is the reason for the employment decision. ^[12] In mixed-motive cases, an illegitimate factor is only a reason, accompanied by other legitimate reasons for the decision. ^[13] The pretext and mixed-motive cases also differ in the way burdens of proof are allocated. ^[14]

A. Pretext Cases

In the landmark case of McDonnell Douglas Corp. v. Green, ^[15] the United States Supreme Court made it clear that Title VII does not require employers to hire individuals because they are members of a minority group. ^[16] All that is required of employers "is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications." ^[17] In order to ensure that employers were not surreptitiously erecting discriminatory barriers, the Court in McDonnell Douglas established a three-step approach for analyzing pretext cases. ^[18] The first step of the tripartite framework places the burden on the plaintiff to establish a prima facie case of discrimination. ^[19] Second, if the plaintiff establishes a prima facie case by a preponderance of the evidence, the burden then shifts to the employer to establish a legitimate business reason for the employment decision. ^[20] Finally, if the employer advances a legitimate reason, the burden shifts back to the plaintiff, who must prove that the employer's stated

[*pg 291] reasons for the employment decision were a pretext for discrimination. ^[21]

In a subsequent case, Texas Department of Community Affairs v. Burdine, ^[22] the Court discussed the nature of the evidentiary burdens that must be satisfied in each step of the pretext framework. The Court characterized the burden of establishing the prima facie case as "not onerous." ^[23] Therefore, the burden that shifts to the defendant to rebut the prima facie case is only a burden of production, not one of persuasion. ^[24] "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." ^[25] In the third step of the tripartite framework, Burdine provided plaintiffs with the option of demonstrating pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." ^[26]

B. Mixed-Motive Cases

The pretext framework assumed that the employment decision in question was made for a single reason and that the trier of fact must determine what the "true" motivation was -- the discriminatory factor advanced by the plaintiff or the legitimate reason suggested by the employer. ^[27] As courts decided more employment discrimination cases, it became clear that it was not always easy to pinpoint a single cause for an employment decision. Sometimes there was evidence that both legitimate and illegitimate reasons played a role, and these situations became known as mixed-motive cases. ^[28]

In Price Waterhouse v. Hopkins, ^[29] the United States Supreme Court, in a plurality opinion, concluded that a different allocation of burdens should apply in mixed-motive cases that arise under

[*pg 292] Title VII. ^[30] In clarifying the evidentiary burdens shouldered by each party, the Court distinguished Burdine, stating that "the premise of Burdine is that either a legitimate or an illegitimate set of considerations led to the challenged decision . . . Burdine's evidentiary scheme will not help us decide a case admittedly involving both kinds of considerations." ^[31] Like in the pretext cases, "the plaintiff retains the burden of persuasion on the issue of whether [an unlawful factor] played a part in the employment decision." ^[32] After the plaintiff has proven that an illegitimate motive played a role in the employment decision, an employer can only avoid liability by demonstrating by a preponderance of the evidence that it would have reached the same decision based on the legitimate motive. ^[33] The plurality did not see this as a shifting of burdens; rather, it characterized the employer's burden as "an affirmative defense." ^[34]

The employer's burden in mixed-motives cases is thus more rigorous than in pretext cases. In pretext cases, the employer bears only the burden of production, and that burden is satisfied once the employer produces evidence of a legitimate reason for the employment decision. ^[35] In mixed-motives cases, the employer "must show that its legitimate reason, standing alone, would...