The Mixed-motives Defense in Workplace Discrimination Actions and Its Procedural Issues in the Eleventh Circuit - Richard A. Weller

• Jurisdiction: United States,Federal
• Publication year: 2000
• Citation: Vol. 51 No. 2

Comment

The Mixed-Motives Defense in Workplace Discrimination Actions and Its Procedural Issues in the Eleventh Circuit

I. Introduction

Being fired from one's place of employment is an unfortunate incident that many Americans face on one or more occasions during their lifetimes. Discharged employees obviously experience some degree of economic loss by losing salaries and benefits. Even when rightfully discharged, employees may suffer emotional and psychological harm because of their perceived failure. This harm may be magnified when the employee has been discharged for wrongful, illegal reasons.

However, in some cases an employer may have legitimate, legal reasons to terminate an employee and simultaneously have illegal, discriminatory reasons. In such a "mixed-motives" situation, employers may be able to limit their liability or avoid liability altogether. This Comment discusses federal legislation promulgated to deter workplace discrimination and the background of the mixed-motives defense. In addition, it examines certain procedural issues and the nature of the mixed-motives defense in the Eleventh Circuit.

II. Considerations in Employment Discrimination Law

A. Federal Legislation

Congress has promulgated federal legislation to protect employees' rights and to deter workplace discrimination. Employees who believe that they have been discharged for illegal, discriminatory reasons generally have the option of basing their actions on one or more federal statutes.

Title VII of the Civil Rights Act of 1964¹ ("Title VII") provides that employers, in both the private and public sectors, cannot "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."² In addition, an employer may not "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."³

Congress responded to age and disability discrimination in the workplace by enacting both the Age Discrimination in Employment Act of 1967 ("ADEA")⁴ and the Americans with Disabilities Act of 1990 ("ADA").⁵ The ADEA provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."⁶ The ADA provides that covered entities are prohibited from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."⁷

In addition, employees in the public sector may also be able to include 42 U.S.C. Sec. 1983 as a basis for their actions. Section 1983 prohibits employers acting under the authority of state or federal law from using their authority to deprive employees of federally guaranteed rights. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .⁸

Another avenue to pursue damages in both the private and public sectors is 42 U.S.C. Sec. 1981, which secures an employee's right to enter into contracts without discrimination based on race or ancestry. Section 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.⁹

Nevertheless, workplace discrimination resulting in employee discharge is commonplace in American society, and this discrimination has created much legislation and court cases protecting employees from unfair labor decisions. There are, however, means that exist by which an employer is completely shielded from liability or is protected from unlimited employee damage awards.

B. Mixed-Motives Cases

Over twenty years ago, the courts began to address situations in which an employee was discharged for both legal and illegal reasons. In Mt. Healthy City School District Board of Education v. Doyle,¹⁰ an unten-ured teacher lost his job because the school district did not renew his employment contract. Fred Doyle taught for the school board under one-year contracts during his first two years and under two-year contracts thereafter. Eventually, the school board decided it did not want to rehire Doyle to teach in its district. The school board considered several factors in deciding not to renew Doyle's employment contract. The school board argued that during Doyle's employment, he (1) was involved in an argument with another teacher that resulted in the other teacher slapping Doyle, and Doyle refused to accept an apology; (2) was involved in an argument with school cafeteria employees over the size of his serving; (3) referred to students as "sons of bitches"; (4) made an obscene gesture to two female students who did not obey his instructions when he was supervising the cafeteria; and (5) telephoned a local radio station to criticize a school memorandum regarding the faculty dress code.¹¹

After the school board determined that it would not rehire Doyle, Doyle requested that the school board explain its decision.¹² The school board's response was a statement that Doyle demonstrated "a notable lack of tact in handling professional matters."¹³ The school board's statement also specifically mentioned Doyle's conversation with the radio station and his use of obscene gestures directed at students as reasons for his termination.¹⁴

Doyle sued the school board, arguing that the telephone call to the radio station was protected by the First Amendment and that the decision not to rehire him violated his First Amendment right to free speech.¹⁵ Both the district and the circuit courts found that the First Amendment protected Doyle's conversation with the radio station.¹⁶ The Supreme Court agreed that the burden was properly placed upon Doyle to prove that the conversation was protected speech and that the conversation was a "substantial" or "motivating" factor in the decision not to rehire him.¹⁷ However, the Court remanded the proceedings to determine whether the school board could have shown by a preponderance of the evidence that "it would have reached the same decision as to [Doyle's] reemployment even in the absence of the protected conduct."¹⁸ In effect, the Court in Mt. Healthy provided a complete defense to section 1983 violations when the employer proves that the same decision to fire the employee would have been reached for legally permissible reasons.¹⁹

The mixed-motives defense arose again in Price Waterhouse v. Hopkins,²⁰ which involved a claim of discrimination based on a statute rather than the Constitution. Hopkins, a female senior manager for

Price Waterhouse, was nominated for partnership in 1982.²¹ Hopkins had worked for Price Waterhouse in its Washington, D.C., Office of Government Services for five years. At that time only 7 of the firm's 662 partners were women. Hopkins was the only woman nominated for partnership in a group of eighty-eight nominees that year. Upon evaluation the company decided neither to offer nor deny her admission to the partnership. Her nomination for partnership was suspended for reconsideration the following year. However, the partners in her office decided to withdraw their support before her candidacy was reviewed.²² Hopkins sued Price Waterhouse, alleging that the partners violated Title VII, by discriminating against her on the basis of sex when considering her for partnership. Hopkins offered evidence of her impressive accomplishments as senior manager. She had assisted in securing a $25 million contract and received praise for her "outstanding performance" that was carried out "virtually at the partner level." In addition, Hopkins presented evidence that many of the partners had praised her efforts in the past with words including "professional" and "extremely competent." Furthermore, the trial court judge determined that none of the other employees nominated for partnership had comparable accomplishments regarding securing large contracts for the company.²³

Hopkins also produced evidence that some of the partners had negative reactions to her personality because of her sex. Some of the employees referred to Hopkins as "macho" and objected to her use of foul language because they deemed it to be unbecoming of a woman. However, the evidence also indicated that Hopkins was often abrasive and difficult to work with. Hopkins had been described as universally disliked, annoying, and irritating.²⁴

The trial court found that Price Waterhouse had indeed violated Title VII by discriminating against Hopkins on the basis of sex. The court noted that Price Waterhouse could have avoided equitable relief if it had proven by clear and convincing evidence that Hopkins's partnership candidacy would have been suspended even absent the gender discrimi- nation. The court determined that Price Waterhouse had not met this burden.²⁵

The court of appeals affirmed the...