THE RAINBOW CONNECTION: REVISITING THE MIXED-MOTIVE SUMMARY JUDGMENT STANDARD IN BOSTOCK'S AFTERGLOW.

• Author: Vice, Courtney

"You never completely have your rights, one person, until you all have your rights." - Marsha P. Johnson (1) Introduction 916 I. History 919 A. Employment-at-Will 919 B. The Development of the Mixed-Motive Burden of Proof 920 i. Price Waterhouse v. Hopkins 990 ii. The 1991 Civil Rights Act 923 iii. Desert Palace, Inc. v. Costa 974 C. Bostock's Effect on Title VII 925 D. The Current State of Mixed-Motive Antidiscrimination Law 929 II. The Gaps in the Current Mixed-Motive Standard 932 A. Implicit Bias and Modern-Day Discrimination 932 B. Implicit Bias's Impact on Employment Discrimination Cases 936 C. Relevance to the LGBTQ* Community 939 III. Previously Proposed Solutions 946 A. Mandatory Arbitration Clauses 946 B. In-House & Educational Solutions 948 IV. How to Apply Title VII to the Modern Era 950 A. Including Implicit Bias in the 2000e-2(m) Standard 950 B. Removing McDonnell Douglas from Mixed-Motive Summary Judgments 953 C. Legislative History Supports Including Implicit Bias and Excluding McDonnell Douglas in Mixed-Motive Cases 955 D. Including Implicit Bias Analysis in Mixed-Motive Cases Will Not Overburden Employers' Decision-Making Abilities 957 Conclusion 958 INTRODUCTION

Since the 1969 Stonewall Riots, June has been revered as a month of revolution for LGBTQ* (2) rights. (3) In 2000, President Bill Clinton officially declared June as Gay and Lesbian Pride Month, and, in 2011, President Barack Obama expanded the observance of pride to include transgender and bisexual identities. (4) June's spark struck again when the Supreme Court upheld same-sex couples' right to marriage in their 2015 Obergefell v. Hodges decision. (5) June was recently an important time for the LGBTQ* community in 2020. On June 15 of that year, the Supreme Court decided Bostock v. Clayton County, (6) which asked whether Title VII of the Civil Rights Act of 1964 (Title VII) (7) prohibited employment discrimination based on one's sexual orientation and/or gender identity. (8) In a 6-3 opinion, the Court said yes. (9)

Upon hearing the Bostock decision, the LGBTQ* community audibly sighed in relief. Decades of fighting to express their sexual orientation and gender identity in the workplace without fear had finally culminated in Bostock. (10) Duke Law Professor Trina Jones succinctly described the decision's impact: "The decision increases the possibility that the more than 8 million members of the LGBT[Q*] community will be treated with the dignity and respect that people deserve in every aspect of life, and especially when they are simply trying to earn a living." (11) Nevertheless, a question lingered in the silence that followed: was this really the end of employment discrimination for the LGBTQ* community?

Title VII forbids employers from discriminating against employees "on the basis of race, color, religion, sex, or national origin." (12) Despite Title VII's prohibition on discrimination based on "sex," until Bostock, courts had not yet consistently expanded "sex" to include LBGTQ* status as a protected class. In fact, until Bostock, even the Court's most expansive readings of "sex" never explicitly included transgender and gender nonconforming people. (13) The Equal Employment Opportunity Commission (EEOC) had evolved in its own interpretations, expanding Title VII to apply to gender identity in Macy v. Department of Justice (14) and further extending it to sexual orientation in 2015 in Baldwin v. Department of Transportation (15) However, the circuit courts were split on whether sexual orientation and gender identity fell into discrimination because of sex. (16) Bostock affirmed the EEOC's and certain circuits' expansion of Title VII, finally settling this long-standing disagreement.

Bostock and its consolidated cases were considered mixed-motive cases --as are most employment discrimination cases. (17) These cases involve evidence that the employer may have had both lawful and discriminatory reasons for taking a particular adverse employment action. Courts' standard for evaluating mixed-motive cases has evolved alongside their understanding of how workplace discrimination manifests. The modern standard for evaluating such cases comes from the 1991 Civil Rights Act's (1991 CRA) (18) [section] 2000e-2(m) provision, which holds that an employee must show that her protected identity was a "motivating factor" for an employer's adverse employment decision. (19)

Even with this more lenient standard, employment discrimination plaintiffs face steep hurdles in getting their cases past a defendant's motion to dismiss. This Note argues that the two major obstacles in succeeding past the summary judgment stage are the misplaced application of the more onerous McDonnell Douglas Corp. v, Green (20) standard at summary judgment and the courts' resistance to consider implicit bias when evaluating plaintiffs' claims and employers' same action defense. These obstacles are particularly damaging for LGBTQ* workers who have achieved surface-level societal acceptance but still regularly combat employers' and decisionmakers' lingering implicit biases. (21) When someone is LGBTQ* and employed at will, they are more at risk of facing such implicit biases while having little chance for remedy. (22) In response, this Note suggests (1) that the 2000e-2(m) standard should be the only one offered at summary judgment for mixed-motive cases and (2) that courts include implicit bias evidence in their evaluation of mixed-motive discrimination cases.

Part I of this Note gives an overview of the concepts necessary for understanding its proposals. It first examines the employment-at-will doctrine and the evolution of the mixed-motive burden of proof through Price Waterhouse v. Hopkins, (23) the 1991 CRA, and Desert Palace Inc. v. Costa. (24) From this, it will discuss the ongoing debate amongst circuit courts on what is the proper standard for evaluating summary judgment motions for mixed-motive employment discrimination cases. Part II then discusses potential reasons why the 1991 CRA mixed-motive standard has not "revolutionized" employment discrimination law as some scholars expected. (25) It suggests that the current CRA standard is ill-suited to address the newly recognized forms of discrimination caused by implicit bias and that circuits' continuing use of the McDonnell Douglas standard for mixed-motive cases is similarly improper. Part II further explains how these inadequate standards particularly affect LGBTQ* plaintiffs who are superficially accepted by society but still deal with implicit anti-LGBTQ* bias, even from truly pro-LGBTQ* employers. Part III will discuss previously offered solutions to this problem and examine how and why they fail to adequately resolve it. Lastly, Part IV will propose that, moving forward, courts should abandon the McDonnell Douglas analysis in mixedmotive cases and instead include implicit bias analysis when reviewing employees' prima facie mixed-motive claims and employers' affirmative defenses.

1. HISTORY

   1. Employment-at-Will

      Initially adopted from English law, employment-at-will's (EAW) U.S. counterpart began to diverge from its European origins in the nineteenth century. (26) The modern U.S. idea of termination at-will allows for an employer to terminate an at-will employee at any time for any reason (or for no reason)--except for independently unlawful grounds--without incurring legal liability. (27) Likewise, an employee may leave an at-will job at any time for any or no reason without adverse legal consequences. (28) All U.S. states (excluding Montana) are at will, (29) meaning that employees across the nation--including major cities like New York, Los Angeles, Chicago, Miami, Philadelphia, San Francisco, Austin, and Houston--are subject to EAW's unpredictable nature. (30)

      The creation and expansion of antidiscrimination law have been the most restrictive exception to an employer's ability to hire, fire, promote, and make other employment decisions. After all, EAW does not allow for unlawful terminations, including terminations considered discriminatory under Title VII. (3)' In theory, Rostock's expansion of Title VII means that an employer cannot fire, deny promotions to, or terminate an employee because of his or her sexual orientation and gender identity. However, this Note will demonstrate this protection may be weaker in practice than it is on paper.

   2. The Development of the Mixed-Motive Burden of Proof

      i. Price Waterhouse v. Hopkins

      Under Title VII, there are two theories of employer motive for adverse employment actions: single and mixed. The single-motive theory developed from the U.S. Supreme Court's narrow interpretation of Title VII's "because of language. (32) To the Court, "because of meant that a single discriminatory reason motived the adverse employment action. (33) The standard for evaluating such cases comes from the Supreme Court's decision in McDonnell Douglas? (34) Under this standard, the plaintiff must first establish a prima facie case of discrimination. (35) The burden then shifts to the employer, who must articulate a legitimate and nondiscriminatory reason for their adverse employment action. (36) Lastly, if the employer is successful in articulating this reason, the burden shifts back to the plaintiff, who--to avoid losing her case--must demonstrate that the employer's reasoning is pretextual for discrimination. (37)

      However, the Supreme Court reconsidered its narrow understanding of Title VII's "because of language in Price Waterhouse v. Hopkins. (38) The case centered on Ann Hopkins, a senior manager at Price Waterhouse who was proposed as a candidate for partnership. (39) Despite partners in Hopkins's office praising her character and accomplishments, (40) some found her aggressive personality grating, describing her as "macho" and needing "a course at charm school." (41) The nail in the proverbial sexist coffin was when the head partner at the Washington office, Thomas...