Employers generally realize that trying a “mixed-motive” discrimination lawsuit in front of a jury may be risky; it is expensive, the stakes may be high and the outcome uncertain. In the past, a mixed-motive case may have been dismissed on summary judgment, a procedure where a case may be dismissed by a judge before it reaches a jury, because the plaintiff could not produce direct evidence of discriminatory intent for the employment action taken. The United States Supreme Court’s recent ruling in Desert Palace, Inc. v. Costa, __ U.S. __, 123 S. Ct. 2148 (2003), may change this dynamic in mixed-motive cases under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), as more cases may survive summary judgment and reach a jury based on circumstantial evidence of discriminatory motive.
What is a “mixed-motive” case? A “mixed-motive” case is one where both legitimate (i.e., poor job performance) and improper (i.e., sex discrimination) reasons motivate an employment decision.
In Desert Palace, the employer terminated the employment of a female warehouse worker and heavy equipment operator who had a history of disciplinary problems, including informal rebukes, a denial of privileges and suspension. The plaintiff's employment ultimately was terminated after she had a physical altercation with a fellow warehouse worker. She then filed suit against her former employer, alleging sex discrimination and sexual harassment under Title VII. The plaintiff’s sexual harassment claim was dismissed by the trial court, but her sex discrimination claim proceeded to trial. At trial, the plaintiff presented circumstantial evidence showing: (1) she was singled out for “intense stalking” by one of her supervisors; (2) she was disciplined more severely than men who engaged in the same conduct; (3) she was treated less favorably than men in terms of overtime assignments; (4) supervisors “stacked” her disciplinary record; and (5) supervisors frequently used and tolerated sex-based slurs against her.
The trial court instructed the jury that, among other things, the plaintiff had the burden of proving by a preponderance of the evidence that she was subjected to adverse working conditions and that her sex was a motivating factor in the imposition of those working conditions. The jury also received the following “mixed-motive” instruction: “If you find that the plaintiff’s sex was a motivating factor in the defendant’s treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant’s conduct was also motivated by a lawful reason.” The jury was instructed further that: “[I]f you find that the defendant’s treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff’s gender had played no role in the employment decision.”
Relying on a previous Supreme Court decision (PriceWaterhouse v. Hopkins, 490 U.S. 228 (1990)), the employer objected to the mixed-motive jury instruction and argued that the plaintiff had to produce direct evidence of discriminatory motive to be entitled to such an instruction. Direct evidence often is thought of as a “smoking gun” – evidence that clearly shows a discriminatory motive, such as a memo from a supervisor stating that an individual's employment is being terminated because of her sex, race or age. The issue before the Court was whether the plaintiff’s circumstantial evidence was sufficient to entitle her to the mixed-motive instruction and to ultimately prevail at trial.
The Supreme Court found that the plain language of Title VII did not require direct evidence of discrimination in mixed-motive cases. Congress amended Title VII (after the Price Waterhouse decision) with the Civil Rights Act of 1991, which states that an unlawful employment practice is established when a complaining party “demonstrates that . . . sex [or another protected characteristic] was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). The Court explained that because the Act does not expressly require that direct evidence be produced or that some other heightened showing be made, a plaintiff may advance her case by demonstrating discrimination through circumstantial evidence. The Court further explained that use of circumstantial evidence is common in all litigation, including employment discrimination cases.
Desert Palace likely will allow more plaintiffs, at least in Title VII mixed-motive cases, to reach a jury by relying on circumstantial evidence. Circumstantial evidence, such as comparing similarly situated employees with different protected characteristics, often is used to prove employment discrimination because circumstantial evidence may be probative of discriminatory animus or motive and direct evidence may be difficult to find. Though mixed-motive claims may be more likely to reach a jury, proper documentation of employee performance and disciplinary concerns will continue to play an important role in defending employment discrimination claims. Proper documentation will not necessarily insulate an employer from liability; however, it will go a long way toward establishing an employer’s legitimate, non-discriminatory reasons for the employment action taken and it will help discredit a plaintiff's claim that discriminatory animus was a motivating factor.