Toward a motivating factor test for individual disparate treatment claims.

• Date: 01 October 2001
• Author: Mizer, Benjamin C.

INTRODUCTION

Nathan Fields, an African-American employee at the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), was in many ways the typical Title VII (1) employment discrimination plaintiff, with a case that, on its face, suggested both discriminatory and benign actions by his employer. (2) For six years, (3) Fields worked as a maintenance assistant in the electrical shop at OMRDD's Oswald D. Heck Developmental Center ("Heck"). During that time, he twice applied for a promotion, and on each occasion, Heck selected white employees for the position. (4) In addition, Fields claimed that he was discriminatorily singled out for disciplinary treatment, that he was assigned to a disfavored work shift, and that he received fewer opportunities for overtime work than his white coworkers. (5) Fields offered statistical evidence indicating that Heck disproportionately assigned the tedious and difficult "ballast" work to the minority employees of the electrical shop. (6) Fields's statistics also revealed that Heck did not randomly assign job pairings in the electrical shop; rather, Heck tended to assign minorities to work with other minorities, while disparately matching white workers with other whites. (7) Finally, Fields testified that on two or three occasions he heard white employees make racial jokes or slurs about minority co-workers. (8)

As is the case in many employment discrimination "disparate treatment" claims, (9) however, other facts -- including Fields's spotty employment record and Heck's ability to articulate legitimate, nondiscriminatory reasons for many of its actions -- complicated the plaintiff's claims. Fields himself acknowledged, for example, that he was poorly qualified for the promotions, and that he had accumulated negative time, attendance, and performance records while at Heck. (10) In addition, Heck demonstrated that it assigned the tasks protested by Fields largely on the basis of the different levels of experience and expertise of each of its workers -- not on the basis of the employees' races. (11) The jury agreed with the defendant's explanation, returning a verdict in favor of Heck on all of Fields's claims, and the Second Circuit affirmed the jury's verdict on appeal. (12)

An examination of Fields illustrates the many problems with the current state of Title VII claims and the extent to which the Supreme Court's artificial distinctions between different standards in this context have broken down. The trial judge in the case offered jury instructions that were, according to the appellate court, "needlessly confusing." (13) The judge informed the jury that the plaintiff could prevail either (1) by proving that the defendant was animated by a "discriminatory motive," or (2) by proving both that Heck's stated reasons for its actions were pretextual and that its real reasons were discriminatory. (14) These separate prongs derive from two distinct strains of disparate treatment law -- what are termed "mixed-motive" and "pretext" claims. Although the trial court's instructions were not completely accurate, the Second Circuit complicated the analysis even further by blurring the lower court's two prongs. In order to understand how the appellate court collapsed the two prongs, it is important first to examine the source of the trial court's distinction.

The second half of the trial court's instruction in Fields derives from the burden-shifting framework laid out by the Supreme Court in McDonnell Douglas Corp. v. Green. (15) In an ordinary McDonnell Douglas-Burdine case, (16) the plaintiff first must make out a prima facie case by showing that: (1) she is a member of a protected class; (2) she was qualified for a job or promotion for which she applied; (3) she was rejected; and (4) the position remained open or was filled by another applicant. (17) Once the plaintiff has established this prima facie case, the burden shifts to the employer, who must articulate a legitimate, non-discriminatory reason for the employment action. (18) If the defendant satisfies this burden, the plaintiff then must demonstrate that the defendant's proffered reason is pretextual, and that the actual motive for its actions was discriminatory. (19) The Court recently indicated that, where the plaintiff has demonstrated pretext, the prima facie case itself may be sufficient evidence from which the jury can infer that the defendant's actual motivation was discriminatory. (20)

After the Court handed down its decision in 1973, McDonnell Douglas-Burdine's burden-shifting framework dominated the landscape of employment discrimination claims. In the 1980s, however, a different form of analysis emerged, as lower courts held that discrimination plaintiffs could establish a violation of Title VII by proving that an unlawful motive had played some role in an employment decision. (21) This analysis allowed plaintiffs to establish a prima facie case by pointing to naked instances of discrimination without satisfying each of the four prongs required to show pretext under McDonnell Douglas-Burdine. When the circuits began to disagree over this new proof structure, the Supreme Court sought to resolve the issue in Price Waterhouse v. Hopkins (22) -- one of several notable Title VII cases during the 1989 term. (23)

Price Waterhouse is central to this Note for two important reasons. The decision not only recognized mixed-motive claims as a strand of disparate treatment analysis separate from McDonnell Douglas-Burdine, but a concurring opinion also introduced the "direct evidence" requirement that has created considerable confusion ever since. In Price Waterhouse, the Supreme Court faced a case in which the employer had "mixed motives" for its challenged action -- where, in other words, both legitimate and discriminatory rationales motivated its decision. (24) In Justice Brennan's plurality opinion, the Court held that the plaintiff bore the initial burden of showing that a discriminatory reason was a substantial or motivating factor in the employment decision. (25) If the plaintiff made this showing, the burden then shifted to the employer to prove by a preponderance of the evidence that it would have made the same decision even if it had not relied on the unlawful factor (the so-called "same-decision" defense). (26) Thus, simply stated, Price Waterhouse centrally held that the defendant in a mixed-motive case can avoid liability by prevailing on the same-decision defense.

In retrospect, a concurring opinion in Price Waterhouse is perhaps more notable than the plurality's holding. In her concurrence, Justice O'Connor stated that plaintiffs in mixed-motive cases must present "direct evidence" that the employer placed "substantial negative reliance on an illegitimate criterion" in reaching its decision. (27) The lower courts quickly latched on to Justice O'Connor's wording, and, despite the fact that she offered little explanation of her terminology, the direct evidence standard became the touchstone of mixed-motive cases. (28)

In the Civil Rights Act of 1991 ("CRA"), (29) Congress responded to a handful of decisions from the Supreme Court's 1989 term, including Price Waterhouse, that many advocates viewed as hostile to civil rights -- and specifically to victims of employment discrimination. (30) Most important for the purposes of this Note, the CRA states that any employment decision in which a protected characteristic is a "motivating factor" constitutes a violation of Title VII. (31) In contrast to Price Waterhouse, the CRA does not exempt from liability employers who succeed on the same-decision defense; it merely limits the damages that can be levied against them. (32) The legislators failed to specify, however, whether they intended the CRA to embrace or abandon Justice O'Connor's direct evidence standard for mixed-motive cases. (33)

The lower courts responded to the ambiguities of Justice O'Connor's Price Waterhouse concurrence and the CRA by fixating on the direct evidence standard. Although only Justice O'Connor and the three dissenters agreed that plaintiffs must adduce direct evidence in order to establish a mixed-motive claim, most circuits have followed the minority in requiring direct evidence as a threshold for mixed-motive claims. (34) Since embracing this standard with near uniformity, however, the courts have struggled to reach a common understanding of direct evidence in assessing mixed-motive claims.

The circuit courts currently fall into three general schools of thought with respect to the meaning of "direct evidence." (35) The difference among the separate camps is measured by the degree of circumstantial evidence that the courts allow to satisfy the direct evidence requirement. The first school, sometimes termed the "classic" position, is the strictest in its definition of direct evidence. (36) These courts require mixed-motive plaintiffs to present evidence that suffices to prove, without inference, presumption, or consideration of other evidence, that a discriminatory animus motivated the defendant employer in the challenged employment decision. (37) The second camp, called the "animus plus" position, is somewhat more generous to plaintiffs. These courts hold that direct evidence includes statements or conduct by the employer that directly reflect the alleged discriminatory animus, and that relate precisely to the employment decision at issue. (38) Under this approach, the required evidence may be either direct or circumstantial. (39) Finally, the third school, or "animus" position, requires only direct or circumstantial evidence that shows a discriminatory animus. (40) Unlike the animus-plus school, this approach does not require that the evidence bear squarely on the particular employment decision at issue. (41)

The distinction between pretext claims -- those that ask the jury to infer discrimination through the McDonnell Douglas-Burdine framework -- and...