Supreme Court Clarifies the “Mixed Motive” Instruction In Desert Palace v. Costa

By:  Megan Dalton with Contributions by Jamie C. Ray

The Supreme Court recently settled an ongoing dispute concerning the type of evidence required to obtain a “mixed motive” jury instruction in Title VII discrimination cases.  Until the Court’s decision in Desert Palace Inc., v. Costa, it was unclear as to whether direct or circumstantial evidence was sufficient and when the burden of proof shifts to the employer to prove a legitimate, non-discriminatory reason for its employment decision.

Since the enactment of Title VII of the Civil Rights Act of 1964, the law has fervently upheld equality, in that it is illegal to discriminate against any person on the basis of sex, race, color, national origin, or religion.  The concern over the amount of evidence necessary to prove discrimination, however, and when the burden shifts to the employer to proffer a legitimate reason for its decision, has been widely debated.  While the Court in Price Waterhouse v. Hopkins, 490 U.S. 228, held that an employer has an affirmative defense if it can prove that it would have made the same decision even absent the role of plaintiff’s sex, it was divided on question of when the burden of proof shifts from the plaintiff to the defendant employer.  Likewise, the question remained as to whether the plaintiff must prove by direct evidence that an impermissible consideration was a motivating factor in the adverse employment action.  Justice O’Connor wrote in concurrence of the Price Waterhouse plurality opinion arguing that the burden of proof shifts to the employer only when the plaintiff shows by direct evidence that an illegitimate criterion was a substantial factor in the adverse employment decision.

Following the Price Waterhouse case, Congress then passed the Civil Rights Act of 1991.   Under the 1991 Amendments, an unlawful employment practice can be established when the complaining party demonstrates that sex was a motivating factor for any adverse action, which may exist in addition to other non-discriminatory factors.  Once the employee proves that sex was a motivating factor, then the employer has the opportunity to show that it would have taken the same action regardless of the motivating factor.

In Desert Palace Inc. v. Costa, Ms. Costa was the employer’s only female warehouse worker and heavy equipment operator.  Her inability to get along with management and co-workers led to escalating disciplinary sanctions, ultimately resulting in her termination.  She then filed a Title VII claim against her employer, alleging discrimination on the basis of sex.  In sending the case to a jury, the district court instructed that if Ms. Costa proved by a preponderance of the evidence that sex was a motivating factor in the actions taken against her, she was entitled to damages, even if the employer’s conduct was motivated by other lawful reasons.  The jury was instructed to deny her damages only if the employer proved that it would have treated her similarly, had gender played no role.  While the employer objected to the instruction based on a lack of direct evidence that sex was indeed a motivating factor, the jury awarded plaintiff back pay, compensatory, and punitive damages.  Initially, the 9^th Circuit vacated and remanded the decision, agreeing with the employer’s position that the district court had erred in giving a mixed motive instruction because the plaintiff failed to present substantial, direct evidence of discrimination.  However, the 9^th Circuit, sitting en banc subsequently reinstated the district court’s decision. 

The Supreme Court granted certiorari in Desert Palace to consider a case of first impression, addressing the effects of the 1991 Amendments to the Civil Rights Act on jury instructions in “mixed motive” cases.  The Court unanimously held that direct evidence of discrimination is not required for a plaintiff to obtain a mixed motive jury instruction under Title VII. 

The Court justified its ruling, and likewise dispelled the employer’s arguments, through analysis of the statutory language of the Act and its legislative intent.  The employer had based its argument on Justice O’Connor’s concurring opinion in Price Waterhouse.  In response, the Court looked to the language of the Title VII statute, and found that it does not mention that a plaintiff must make a heightened showing through direct evidence.  The Court saw no reason to depart from the conventional rule that requires the plaintiff to prove a case by a preponderance of the evidence, direct or circumstantial.  Circumstantial evidence has long been used in discrimination cases and furthermore, has never been questioned as insufficient in criminal cases, where the standard of proof is beyond a reasonable doubt.  Additionally, the statute’s use of the word “demonstrates,” in reference to discrimination, tends to show that it does not incorporate a requirement of direct evidence into the section.  Absent congressional intent to the contrary, the Court refused to give the term “demonstrates” a different meaning.  Ultimately, the Court held that in order to obtain a mixed motive instruction, the plaintiff need only present sufficient evidence for a reasonable jury to conclude that “race, color, religion, sex or national origin was a motivating factor for any employment practice.”

As a result of the decision, the burden on plaintiffs in discrimination cases is considerably less.  Plaintiffs can utilize circumstantial evidence to show that the defendant employer’s discrimination motivated the practice under scrutiny.  Generally, this may result in the mixed motive instruction becoming widely favored in jury trials, a prospect that amounts to a better chance at victory for plaintiffs, and a larger burden to overcome for employers.