Desert Palace, Inc. v. Costa - does McDonnell Douglas survive? A significant new chapter has been written in the evolution of the methods of proving discrimination in the unanimous Supreme Court decision of Desert Palace, Inc. v. Costa.

AuthorSpero, Donald J.

In the nearly 40 years of history of Title VII of the 1964 Civil Rights Act (1), lawyers and courts have devoted a large portion of their efforts to arguing and deciding what proofs are required to establish an "unlawful employment practice," the term that the statute uses to describe violations of its provisions. (2) A significant new chapter has been written in the evolution of the methods of proving discrimination in the recent unanimous Supreme Court decision of Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003). The opinion, written by Justice Thomas, picks up where Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), left off. While providing an answer to one important question, it opens the floodgates to questions as to how to apply that answer.

Price Waterhouse was a four-justice plurality decision which formulated a method of proof for cases in which there is evidence of both discriminatory and neutral reasons for an adverse employment action. In such cases, there is a "mixed motive" for the employer's decision. The plurality decision held that "once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role" (footnote omitted). (3) The Court further found that where a "discriminatory impulse played a motivating part in an employment decision" the employer must prove "that it would have made the same decision in the absence of discrimination ... by a preponderance of the evidence." (4)

Before moving forward, a look back at the various means of allocating parties' burdens of proof in discrimination cases will be helpful. The early Supreme Court decision of Griggs v. Duke Power Co., 401 U.S. 424 (1971), established the disparate impact scheme of proofs, a way of proving that a discriminatory policy that is facially neutral may violate Title VII. (5) An employment practice that disparately excludes those in a protected category of individuals must be shown by the employer to be related to job performance. In International Brotherhood of Teamsters v. United States, 431 U.S. 394 (1977), the Supreme Court held that statistics showing disparities in the employment of those in protected categories could establish a prima facie case of intentional discrimination.

In 1973 the Supreme Court decision in McDonnell Douglas v. Green, 411 U.S. 792 (1973), established a burden-shifting method of proofs. This method is applied where a plaintiff undertakes to prove intentional discrimination by means of circumstantial evidence. The McDonnell Douglas order and allocation of proofs has been the most commonly invoked manner of determining the existence or nonexistence of unlawful discrimination, at least at the summary judgment stage. This is significant as motions for summary judgment are routinely filed by defendants in discrimination cases. As the McDonnell Douglas doctrine has evolved through cases such as Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the initial burdens of the parties are light. To establish a prima facie case of discrimination a plaintiff needs merely to establish membership in a protected group, possession of the fundamental criteria for a job in question, that there is an adverse action such as discharge, demotion, denial of a promotion and replacement by or better treatment of someone outside of the protected group. (6)

The defense also has a light burden in rebutting a prima facie case. It is required merely to produce evidence of a "legitimate, nondiscriminatory reason" for its actions. (7) The McDonnell Douglas Court explains that "the defendant need not persuade the court that it was actually motivated by the proffered reason. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff."). (8)

The defendant's burden at this point has been described as "a burden of production." (9) The burden of persuasion remains always with the plaintiff. (10) If the defendant meets its burden, the plaintiff must then prove that the defendant's stated reason is not the true reason for its actions. (11) This may be accomplished either "directly by showing 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." (12) Because this is often a formidable burden, the majority of discrimination cases are dismissed without getting to trial.

Price Waterhouse permits a plaintiff to obtain a helpful advantage where evidence can be produced that establishes the existence of a discriminatory motive for an employer's adverse action. In such cases, if the evidence is credited by the trier of fact, the burden of proof shifts to the employer to establish that it would have made the same decision in the absence of a discriminatory motive. This makes the defendant's job far more difficult than merely articulating a nondiscriminatory basis for its decision as would be its much lighter burden if the plaintiff's proofs were limited to circumstantial evidence.

In applying the same decision analysis courts have widely relied on a comment by Justice O'Connor in her concurring opinion in Price Waterhouse. Justice O'Connor wrote, "In my view, in order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision." (13) Although Justice O'Connor was not joined in her opinion by any other member of the Court, the lower courts have almost universally required plaintiffs to present direct evidence before they will present the jury with a mixed motive instruction. (14)

Not surprisingly, plaintiffs have attempted to strengthen their position by shifting the burden to the defendant to prove the absence of discrimination, leading to a continuing controversy as to what constitutes direct evidence. This is a matter on which there is hardly universal agreement. As Judge Tjoflat stated in his opinion in Wright v. Southland, 187 F.3d 1287, 1288 (11th Cir. 1999), the question of what constitutes direct evidence is one "that has baffled the courts for some time." In Rollins v. Techsouth, Inc., 833 F.2d 1525 (11th Cir. 1987) the court observed, citing Black's Law Dictionary, that "direct evidence is 'evidence which if believed, proves existence of fact in issue without inference or presumption.'" (15) Judge Tjoflat found that this definition was too restrictive for discrimination cases. (16) He defined direct evidence in the employment discrimination case context as "evidence from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic." (17)

In Carter v. Three Springs Residential Treatment, 132 F. 3d 635, 642 (11th Cir. 1998), a Title VII race discrimination case, one of the employees involved in the decision not to promote the plaintiff purportedly stated that she had minimal experience with black employees and found difficulty in trusting and getting along with them. The 11th Circuit ruled that this was not direct evidence of discrimination. The court held that this statement made to a black coworker was capable of more than one interpretation. It could have been the expression of the speaker's desire to overcome prejudice. The court noted that "statements that are open to more than one interpretation do not constitute evidence of racial discrimination." (18) The court additionally gave weight to the fact that the context in which the statement was made did not relate to the decision not to promote the plaintiff.

By contrast, in Febres v. Challenger Caribbean Corporation, 214 F. 3d 57 (1st Cir. 2000), an ADEA case, the First Circuit found testimony by a decisionmaker that one of three reasons for selecting persons to be laid off was age...

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