A call for Price Waterhouse II: the legacy of Justice O'Connor's direct evidence requirement for mixed-motive employment discrimination claims.

• Author: Ward, Joseph J.

1. INTRODUCTION

   In 1989 the United States Supreme Court decided Price Waterhouse v. Hopkins,(1) a mixed-motive employment discrimination case(2) establishing the requirement that a plaintiff must produce direct evidence of discrimination before the burden of proof will shift to the defendant in Title VII claims.(3) Prior to its decision in Price Waterhouse, the Court had only recognized the traditional McDonnell Douglas/Burdine(4) disparate treatment framework for proving international discrimination.(5) Ambiguity in the Price Waterhouse opinion as to the proper application of the mixed-motive framework has produced considerable confusion among the circuit courts of appeals.(6) Although the courts have tread carefully when approaching the doctrinal quicksand surrounding the direct evidence requirement, none have been sure-footed enough to resolve this evidentiary enigma.(7)

   The definition of evidence sufficiently direct to merit a mixed-motive analysis for employment discrimination claims varies depending on which court or commentator supplies the definition.(8) However, the prevalent view of the required evidentiary burden claims that the plaintiff-friendly Price Waterhouse framework should be available to a plaintiff as long as his or her evidence of discrimination is directly tied to the decisionmaking process at issue.(9) Proponents of this relaxed direct evidence requirement demand increased court accessibility for plaintiffs alleging employment discrimination.(10) Courts and commentators subscribing to this fashionable view argue that the direct evidence requirement articulated by Justice O'Connor in her Price Waterhouse concurrence(11) cannot and must not be interpreted as requiring a more demanding, traditional definition of direct evidence.(12) These advocates claim that unless the less strict direct evidence requirement heralded by their open-the-courts mentality prevails, the true purposes of anti-discrimination legislation such as Title VII and the Civil Rights Act of 1991(13) will be thwarted and justice will suffer.(14) Although this view of Price Waterhouse's direct evidence requirement is currently widespread, the popular view is not necessarily the proper view.

   This Note argues that the direct evidence requirement of Price Waterhouse should be applied strictly, much like Justice O'Connor's application in her Price Waterhouse concurrence. Since the Price Waterhouse Court failed to fully address the issue of proof in mixed-motive cases,(15) the current Court should assume the responsibility for doing so by clarifying that the mixed-motive analysis requires a plaintiff to produce evidence of discrimination that meets the traditional, strict definition of direct evidence. Although a strict definition of direct evidence will admittedly make it more difficult for plaintiffs to merit the preferred mixed-motive framework,(16) this Note argues that the restriction should nonetheless be endorsed by the Court.

   This Note examines the current state of the mixed-motive direct evidence requirement in employment discrimination claims. Part II traces the evolution of the mixed-motive framework from discriminatory treatment and discriminatory impact, the traditional avenues afforded employment discrimination plaintiffs.(17) Part III analyzes the mixed-motive framework by contrasting it with the traditional McDonnell Douglas/Burdine pretext analysis.(18) Part IV discusses the Price Waterhouse decision and reveals the origin of the direct evidence requirement,(19) while Part V provides a proper definition of direct evidence.(20) Part VI highlights the tempest of confusion perpetuated by the courts of appeals as they attempt to determine when the Price Waterhouse mixed-motive framework should apply to employment discrimination claims.(21) Part VII examines common criticisms of the direct evidence requirement and suggests several benefits of the requirement.(22) Part VIII explores how the make-up of the post-Price Waterhouse Court differs from the Price Waterhouse Court and how this difference will affect the outcome of a Price Waterhouse II decision.(23) The Note concludes in Part IX by suggesting that the Supreme Court can ensure unity among the courts by clarifying the proper application of the mixed-motive framework in employment discrimination cases.(24)

2. The Traditional Avenues for Employment Discrimination Claims

   1. Disparate Impact

      There are two traditional theories under which a plaintiff may bring a claim of employment discrimination: disparate impact and disparate treatment.(25) The disparate impact theory was established by the Supreme Court in Griggs v. Duke Power Co.(26) This theory permits a plaintiff to challenge an employment practice that on its face appears to be non-discriminatory, but which has a discriminatory effect on a protected class nonetheless, without requiring proof that the defendant intended to discriminate.(27) To establish a prima facie case of disparate impact, a plaintiff must isolate and identify the specific employment practice causing the disparate impact.(28) A showing of statistical imbalance alone will not establish a prima facie case.(29) The plaintiff must provide proof that a specific affirmative employment practice caused the statistical disparity in question.(30) Thus, the Griggs Court rejected the notion that Title VII requires a subjective intent to discriminate or otherwise mandates a showing of disparate treatment.(31) Griggs was subsequently codified in the Civil Rights Act of 1991,(32) which "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation."(33)

      A disparate impact is established when: (1) the plaintiff identifies a defendant-employer's particular employment practice that has a statistically significant adverse impact on the plaintiff's protected class;(34) and (2) the defendant "fails to demonstrate that the challenge [employment] practice is job related for the position in question" or is otherwise justifiable, such as by a business necessity.(35) The disparate impact theory provides for broad enforcement of Title VII and the Civil Rights Act of 1991. It permits a victim of employment discrimination to attack covert discrimination that might otherwise go unchecked under the disparate treatment theory, which requires the plaintiff to demonstrate the employer's purposeful intent to discriminate.(36)

   2. Disparate Treatment

      The elements of a disparate treatment employment discrimination claim were first articulated in McDonnell Douglas Corp. v. Green.(37) The McDonnell Douglas method of proving discrimination involves a three-step, burden-shifting scheme, which was clarified and elaborated on in Texas Department of Community Affairs v. Burdine.(38) The first element of a disparate treatment claim under the McDonnell Douglas/Burdine framework requires the plaintiff to prove a prima facie case(39) of disparate treatment by a preponderance of the evidence.(40) This prima facie case is established when the plaintiff shows: (1) he or she is a member of a protected class under Title VII; (2) he or she applied for a position or promotion; (3) the defendant-employer had an opening for which it was seeking applicants; (4) the plaintiff was qualified for the position or promotion; and (5) he or she was denied the position or promotion and the defendant-employer thereafter continued to seek applicants consisting of similarly qualified persons.(41) The prima facie case is not difficult for the plaintiff to establish(42) and the purpose of this requirement is simply to rule out the most common reasons for an adverse employment action, such as lack of qualifications for the position sought.(43)

      Once a prima facie case is established, an inference of discrimination by the defendant arises.(44) However, this presumption of discrimination may be rebutted if the defendant can articulate a legitimate non-discriminatory reason for the employment decision at issue.(45) This showing "frames the ultimate issue [of whether intentional discrimination occurred] for the plaintiff ... with greater clarity."(46) Secondly, if the defendant is able to articulate a nondiscriminatory reason for its action, the burden shifts back to the plaintiff to prove that the defendant's reason is merely a pretext and that discrimination was the actual reason for the defendant's decision.(47) The plaintiff's burden of persuasion for this third and final element of the McDonnell Douglas/Burdine disparate treatment paradigm was heightened by the Supreme Court in St. Mary's Honor Center v. Hicks.(48) Hicks requires the plaintiff to prove not only pretext, but also that discrimination was the actual reason for the defendant's action.(49) Thus, proof of falsity does not carry the day for the plaintiff because this additional burden forces a plaintiff to disprove the defendant's unstated reasons for an employment decision.(50)

      Although one commentator has pointed out that "[e]lements of the McDonnell Douglas/Burdine prima facie case conflict with the mandate of the Civil Rights Act of 1991,"(51) the McDonnell Douglas/Burdine framework does further the statutory goals of Title VII.(52) The traditional disparate treatment analysis serves the dual purposes of Title VII of: (1) deterring discriminatory conduct; and (2) making whole those who have been illegally discriminated against.(53) The fact that over ninety percent of all successful Title VII cases are won under the disparate treatment theory testifies to the validity of the McDonnell Douglas / Burdine framework.(54)

3. The Evolution of Mixed-Motive Cases

   1. Mixed-MOtive or Pretext: What's the Difference?

      Prior to the development of the mixed-motive framework for employment discrimination cases, plaintiffs had to bring their claims under the disparate treatment or disparate impact theories. These causes of action assumed that where a single reason motivated the alleged discriminatory...