Amicus Curiae Brief — Price Waterhouse v. Hopkins

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r Supreme Court, U.S. 7

3) FILED

MAY § 1988

JOSEPH F. SPANIOL, 48,

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1167

PRICE WATERHOUSE, PETITIONER

ANN B. HOPKINS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

BRIAN J. MARTIN

Assistant to the Solicitor General

DAVID K. FLYNN

ROBERT J. DELAHUNTY

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether, in this Title VII disparate treatment action, the

court of appeals properly held that evidence of sexual stereotyp-

ing placed the burden of persuasion on the defendant to show

by clear and convincing evidence that the decision against pro-

moting respondent to partner was caused by reasons other than

intentional sex discrimination.

(1)

TABLE OF CONTENTS

Interest of the United States .......................-......

Statement

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Argument:

IV.

Title VII requires a plaintiff claiming disparate treat-

ment to show that an illegal motive caused an

adverse employment decision ...................

A. Causation is a required element of liability

ee aes eb encenseecesece

B. Causation is established if an illegal motive was

sufficient by itself for an adverse employment

decision, or if an illegal motive was necessary in

combination with another motive or motives

es ek esoneee

C. In determining liability under Title VII, “mixed

motive” cases should be treated the same as

EE MD ins cc accenseccececess

D. The plaintiff bears the burden of persuasion on

A defendant may limit the plaintiff's remedy by

showing that the employment decision would have

been the same without the illegal cause ...........

Stereotyping, without more, does not constitute a

Ds aw swans so0esve

The case should be remanded for reconsideration in

light of the correct legal standards ...............

Ne cucucececeévcececs

Cases:

TABLE OF AUTHORITIES

Blalock v. Metals Trades, Inc., 775 F.2d 703 (6th Cir.

ONSET Se err

Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984) ....

Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976) ........

(III)

IV V

Cases — Continued: Page Statute: Page

East Texas Motor Freight System, Inc. v. Rodriguez, 431 Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e ef

U.S. 395 (1977) «0.0 eee cece eee teens 24 ee a aka led eden Kas bos eu ceca coe passim

Fadhi v. City & County of San Francisco, 741 F.2d 1163 ee ccccccccecace 6. 7. 23

(9th Cir. 1984) Sebehdade dale talel ng edetoh cert cadoch Jodi lotodiah hake 24 § 703(a), 42 U.S.C. 2000e- 2(a) 1 EO TET a 8, 10

Fields v. Clark University, 817 F.2d 931 (Ist Cir. 1987) er 12 § 703(a)(1) 42 U.S.C. 2000e-2(a)(1) NCH Lae a 19

Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) .... 16, § 703(a)(2), 42 U.S.C. 2000e-2(a)(2) .............. 8

17, 27 § 706(g), 42 U.S.C. 2000e-5(g) .... 2.0.0.0... 7, 22, 23, 24

Henson v. City of Durdee, 682 F.2d 897 (11th Cir. 1982) . 25

Herman & MacLean v. Huddleston, 459 U.S. 375 (1983) . 23

/ Miscellaneous:

International Bhd. of Teamsters v. United States, 431

TE re ee arr cere pr ieee 9, 16, 24 110 Cong. Rec. (1964):

Kungys v. United States, No. 86-228 (May 2, 1988) ...... 23 DT ec <6unecns cade soUunuhkeneacctanacunees 10

Local 28, Sheet Metal Workers’ Int'l Ass'n v. EEOC, 478 A te Od oe en Se hata 19

WE I 6.6 con neni cuntddd i xdenncatiactaenas 23 Lo RETEEESELEEELEEEEE EEE EEEE ETE 9, 25

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 GN ee TRE a Ma RPA BON EA RIN eyes 19

OED ccaccaddanndecnbevanues sete 9, 11, 15 Pe GRE cece nccncccescvccsccccesscscescuvecese 11

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . 15, 16 Pi FE Soc vc cvnccswasncncnsccecoesanteescenns 10

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ..... 25 Dec. No. 74-15, 1983 CCH EEOC Dec. 4 6394 (Aug. 7

Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499, 111 DN ida aa aa eee ee eae Seer 27

Fi SD c ccuddabkiakkdeos ces uaceaneeetae wanes. q , —o

Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274 a Wiheeerecermimnetimeeteanen : 14

POPPR tat erd ener nedndnntinwh tener ea nnamet ; 8. 21, a . 3 L. Green, Rationale of Proximate Cause (1927) ......... 14

NLRB vy. Transportation Mgmt. Corp., 462 U.S. 393 H. Hart & T. Honore, Causation in the Law (2d ed.

OE cin Gicnduieanesachccccintaineme ee 22, 23 TED Soe nescsentnoetcesesnecceeseadeccoveres 11, 13, 14

Ross v. Communications Satellite Corp., 759 F.2d 355 O. Holmes, The Common Law (1881) ................. 10

SS I 05-4 kh 6 dedaeedees Mou pene maue 12

Texas Dep't of Community Affairs v. Burdine, 450 U.S. R. Keeton, “oe Cause in the Law of Torts (1963) ...... 14

SR iiceciciaecne 7, 16, 17, 19, 20 Pound, Cousation, 67 Vale L.J. 1 (1957) ............... 10

Toney v. Block, 705 F.2d 1364 (D.C. Cir. 1983) ......... 24 W. Prosser, Law of Torts (4th ed. 1971) ............... 14

United States Postal Service Bd. of Governors v. Aikens, Restatement (Second) of Contracts (1981) ............. 22

Gs PR. oo s-056ccctewcandeeesekusis 18, 19, 21

Valley Forge Christian College v. Americans United For mepseuaeel ene Of Torts (1965) ............... 40, 13, 20

Separation of Church & State, 454 U.S. 464 (1982) .... 10 Wright, Causation in Tort Law, 73 Cal. L. Rev. 1735

Village of Arlington Heights v. Metropolitan Hous. Dev. SCG ad hes bcd ee bd cues bee hh Ree kne ekaccewanen 13

Ye ee 12, 21

Williams v. Boorstin, 663 F.2d 109 (D.C. Cir. 1980) ..... 4

In the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-1167

PRICE WATERHOUSE, PETITIONER

ANN B. HOPKINS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents important issues concerning the meaning

and application of Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seg. The United States has responsibility for en-

forcing that statute. Moreover, the United States, as the

nation’s largest employer, is governed by Title VII’s re-

quirements.

STATEMENT

1. Petitioner is an accounting firm that, at the time this action

was commenced, had 662 partners in 90 offices. New partners

are selected from the ranks of senior managers through a formal

recommendation-and-review process. Partners in a local office

propose a candidate for admission. Each of the firm’s partners

is then invited to complete evaluation forms that request infor-

mation regarding the candidate’s business development, tech-

nical expertise, and interpersonal skills. The partners are also

(1)

asked to make a “bottom line” recommendation —i.e., whether

to admit, deny, or defer consideration. Pet. App. 41a-42.

Petitioner’s Admissions Committee reviews each candidate’s

file and interviews partners to supplement the written evalua-

tions. The Admissions Committee prepares a summary of the

evaluations. The Committee then makes recommendations to

the firm’s Policy Board, which decides whether to put a can-

didate to a vote before the partnership, to deny admission, or to

place a candidate on “hold” for a specified period. Pet. App.

4la-42a.

In 1982, respondent Hopkins was proposed for partnership.

She was the only woman among the 88 candidates that year.

Respondent had been successful as a senior manager at peti-

tioner. She played a pivotal role in securing important govern-

ment contracts, and had the best record of the 88 caindidates in

terms of obtaining major contracts. Respondent had no dif-

ficulty dealing with clients, and her clients were very pleased

with her work. Respondent was viewed as a highly competent

project leader who worked long hours. Pet. App. 43a.

A number of petitioner’s partners, however, told the Admis-

sions Committee that respondent had trouble with “interper-

sonal skills” —in particular, that she was overly aggressive, un-

duly harsh, difficult to work with, profane, and impatient with

the staff. Eight of the 32 partners who submitted written evalua-

tions recommended that she be denied admission; three favored

placing her candidacy on hold, and eight stated that they had an

insufficient basis for an opinion. Based on the number of “no”

votes and the negative comments, the Admissions Committee

recommended that “she should be HELD at least a year” (Pet.

App. 44a). The Policy Board agreed. A few months later, two

partners in respondent’s home office decided that they could no

longer support her candidacy. Without such support, respond-

ent had no chance of becoming a partner. She resigned, started

her own firm, and commenced this action against petitioner for

sex discrimination in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e ef seq. Pet. App. 43a-44a.

2. At trial, respondent presented evidence to support three

theories of liability. The district court rejected respondent’s

initial theory that criticisms of her interpersonal skills were

pretextual (Pet. App. 46a). The court found it “clear” that “the

complaints about the plaintiff's interpersonal skills were not

fabricated as a pretext for discrimination” (ibid.). According to

the district court, respondent’s “conduct provided ample

justification for the complaints that formed the basis of the

Policy Board’s decision” (id. at 46a-47a).

Respondent further argued that, even if her interpersonal

skills were deficient, petitioner discriminated by admitting men

with similar problems into the partnership. The district court,

however, found that the evidence did not support this theory

(Pet. App. 48a-S5la). The court found that petitioner “had

legitimate, nondiscriminatory reasons for distinguishing be-

tween [respondent] and the male partners with whom she com-

pares herself” (id. at 48a).

The third theory advanced by respondent was that petitioner’s

decision-making process was tainted by sexual stereotyping.

Respondent alleged that male partners who criticized her inter-

personal skills based their evaluations on their view that asser-

tive behavior is tolerable in men but not in women (Pet. App.

5la-52a). Specifically, respondent cited a number of comments

made by male partners, such as the remark that she needed to

take a “course at charm school” (id. at 5la), and the advice of a

partner, who the district court found spoke on behalf of the

Policy Board (id. at 52a), that respondent ought to walk, talk,

and dress “more femininely” (ibid.). She also cited comments

from the files of other women partnership candidates, such as

the remark that one candidate acted like “Ma Barker” (ibid.).

The district court found that “stereotyping played an unde-

fined role in blocking [respondent’s] admission to the partner-

ship” (Pet. App. 54a). The court also found, however, that the

stereotypes reflected in partner comments were “unconscious”

as distinguished from intentional (ibid.). The court accordingly

concluded that “[t}he comments of the individual partners and

the expert evidence * * * do not prove an intentional discrim-

inatory motive or purpose” (ibid.). In the district court’s view,

Title VII does not authorize the courts to “police every instance

where subjective judgment may be tainted by unarticulated, un-

conscious assumptions related to sex” (id. at 55a).

This did not end the district court’s inquiry, however. The

court went on to find that, “[aJlthough the stereotyping by in-

dividual partners may have been unconscious on their part, the

maintenance of a system that gave weight to such biased

criticisms was a conscious act of the partnership as a whole”

(Pet. App. 56a). The court accordingly held that because of its

“failure to take the steps necessary to alert partners to the

possibility that their judgments may be biased, to discourage

stereotyping, and to investigate and discard, where appropriate,

comments that suggest a double standard” (id. at 57a-58a), peti-

tioner had violated Title VII.

The district court then turned to the issue of remedy. The

court acknowledged that it could not say that petitioner “would

have been elected to partnership if the Policy Board’s decision

had not been tainted by sexually biased evaluations” (Pet. App.

59a). Relying on Williams v. Boorstin, 663 F.2d 109, 117 (D.C.

Cir. 1980), and Day v. Mathews, 530 F.2d 1083, 1085-1086

(D.C. Cir. 1976), however, the court stated (Pet. App. 59a) that

“once a plaintiff proves that sex discrimination played a role in

an employment decision, the plaintiff is entitled to relief unless

the employer has demonstrated by clear and convincing

evidence that the decision would have been the same absent

discrimination.” The court found that petitioner had not met

this burden, and thus that respondent was entitled to relief. '

3. The court of appeals affirmed the ruling that petitioner

violated Title VII (Pet. App. la-39a). The majority held that

there was sufficient evidence to support the finding that a sexual

stereotype —/.e., that females should not be assertive — infected

the partnership decision-making process. The court of appeals

believed that this finding meant that respondent “was treated

' The district court held, however, that respondent failed to prove that she

had been constructively discharged. Accordingly, the court limited respond-

ent’s relief to a declaratory judgment and attorney's fees. Pet. App. 60a-6la.

less favorably than male candidates because of her sex” (id. at

19a). The court held that this fact “is sufficient to establish

discriminatory motive; the fact that some or all of the partners

at Price Waterhouse may have been unaware of that motiva-

tion, even within themselves, neither alters the fact of its ex-

istence nor excuses it” (ibid.).

The court of appeals then rejected petitioner’s argument that

respondent failed to prove “the exact impact that stereotyped

comments had on the Board’s ultimate decision” (Pet. App.

19a). The court held that the district court “had ample support

for its conclusion that stereotyping played a significant role in

blocking [respondent’s] admission to the partnership” (id. at

20a). Once respondent proved that fact, the court of appeals

reasoned, petitioner bore the burden “to show that the decision

would have been the same absent discrimination” (id. at

22a-23a). The court of appeals concluded that respondent did

not carry that burden by clear and convincing evidence (id. at

25a).?

Judge Williams dissented. He believed that there was insuffi-

cient evidence to support a finding of intentional discrimination

(Pet. App. 38a). He noted that the district court found that peti-

tioner’s stated reason for not promoting respondent —that she

had poor interpersonal skills — was not a pretext; thus at most

respondent had proved “generalized discrimination” or the “ex-

istence of sexist attitudes” in the workplace (ibid.). Accordingly,

Judge Williams concluded that respondent had not proven that

she had been treated differently because she is a woman.

SUMMARY OF ARGUMENT

1. Decisions in the lower courts are in a state of considerable

disarray both as to the meaning of the requirement that the

plaintiff must have suffered loss of employment opportunities

“because of” illegal discrimination —the causal requirement of

? The court of appeals reversed the aspect of the judgment not awarding

equitable relief for constructive discharge (Pet. App. 27a).

Title VII —and as to the procedures for establishing liability and

entitlement to relief. The petition (Pet. I, 12) frames these issues

in terms of the proper treatment of Title VII cases involving

“mixed motives,” that is, cases in which the evidence shows that

both discriminatory motives and nondiscriminatory motives

played some role in reaching a particular employment decision.

Although a number of lower courts have looked at the issue in

this way, we think that the correct legal analysis should not vary

depending on whether the case is categorized as one involving

“mixed motives” or “single motives.” Virtually every Title VII

disparate treatment case will to some degree entail muitiple

motives. Thus, if the elements of Title VII liability or the burden

of persuasion differs depending on the “proper” categorization

of a case as involving either mixed or single motives, litigation

wil! focus on what label should be affixed to cases, rather than

on che ultimate question in every Title VII case: whether the

defendant has discriminated against the plaintiff on the basis of

a prohibited criterion.

Title VII, in the tradition of the common law of torts, plainly

requires a causal connection between an adverse employment

decision and the plaintiff's race, color, religion, sex, or national

origin. This conclusion is compelled by the language of Section

703 of Title VII, 42 U.S.C. 2000e-2, its legislative history, and

this Court’s decisions. But neither the statute nor this Court’s

decisions specify how causation is to be defined. In these cir-

cumstances, we think that the proper meaning of causation

under Title VII should be determined by looking to the common

law. We do not agree, however, with those courts that have

characterized the common law as imposing a rigid “but for”

definition of causation, requiring that the illegal motive be a

necessary condition of the challenged decision. The most ac-

curate description of the common law test is that an illegal

motive is a “cause” of a given outcome if the motive was suffi-

cient by itself to produce the outcome, or if it was a necessary

element in any set of motives that together was sufficient to pro-

duce the outcome. This test comports with common sense no-

tions of causation by recognizing that, in the case of two in-

dependent and sufficient motives, each motive should be

regarded as a “cause” rather than neither. All Title VII

cases — whether they involve one, two, or many motives — may

be resolved under this common law view of causation.

A Title VII plaintiff bears the burden of proving causation.

The Court has often held that the plaintiff bears the burden of

“persuading the court that she has been the victim of intentional

discrimination.” Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981). And the plaintiff is such a “victim”

only if the employer’s illegal motive caused an adverse employ-

ment decision. A contrary rule that would shift the burden of

proof on causation to the defendant is not required by the

policies of Title VII, and would present severe problems in

defining the threshold showing that the plaintiff would have to

make before such a shift would occur.

2. Although the plaintiff bears the burden of persuasion in

proving liability under Section 703 of Title VII, Section 706(g),

which sets forth the remedies for Title VII violations, allows a

defendant to limit the plaintiffs remedy by showing by a

preponderance of the evidence that it would have reached the

same employment decision even in the absence of an illegal

cause. Section 706(g) thus expresses the same concern as this

Court announced in Mt. Healthy City Sch: Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977): that a plaintiff should not be placed

in a better position than she would have occupied in the absence

of the illegal discrimination.

3. The evidence in this case may support a finding that an il-

legal motive caused petitioner’s decision not to promote

respondent. The lower courts, however, did not make this find-

ing. They based petitioner’s liability on evidence of stereotyp-

ing—that is, comments by some of petitioner’s partners sug-

gesting that women should not be aggressive or assertive. But

the expression of stereotypes, by itself, is not a Title VII viola-

tion. Rather, comments reflecting stereotypes should be re-

garded as evidence of illegal conduct. To make out a case of il-

legal sex discrimination, respondent must prove that use of a sex

stereotype was part of a motive that in fact disadvantaged her.

Thus, the case should be remanded for the district court to

determine whether respondent was rejected as a partner at least

in part because of negative votes that were motivated by the

view that she is too aggressive for a woman.

ARGUMENT

1. TITLE VIE REQUIRES A’ PLAINTIFF CLAIMING

DISPARATE TREATMENT TO SHOW THAT AN IL-

LEGAL MOTIVE CAUSED AN ADVERSE EMPLOYMENT

DECISION

This case requires consideration of a number of basic ques-

tions about the role of causation under Title VII: Does Title VII

require a causal link between a discriminatory motive and an

employment decision? If so, how is the concept of “cause” to be

defined in the Title VII context? Does Title VII impose a dif-

ferent analysis of causation in mixed motive cases than in single

motive cases? Who bears the burden of proving causation? And

may a defendant limit the plaintiff's remedy if the defendant

proves that, in addition to an illegal cause, an independent and

wholly valid motive also explains the employment decision? The

Court should resolve those questions in light of the language

and policies of Title VII, supplemented, where appropriate,

with reference to the understanding of the concept of causation

that has developed in the common law.

A. Causation Is a Required Element of Liability Under Title VII

There is no doubt that causation is a necestary element of Ti-

tle VII liability. Section 703(a) of the Civil Rights Act of 1964,

42 U.S.C. 2000e-2(a) (emphasis added), provides that it shall be

an unlawful employment practice “to discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin * * *.”} The words

‘ Similarly, Section 703(a)(2), 42 U.S.C. 2000e-2(a)(2) (emphasis added)

provides that it shall be an unlawful employment practice to limit, segregate,

or classify employees “in any way which would deprive or tend to deprive any

“because of” plainly connote a causal connection between the

employment decision and the “individual’s race, color, religion,

sex, Or national origin.”

This Court’s Title VII decisions reflect this understanding.

The Court has described the evidentiary showing required to

establish liability in the disparate treatment context in a variety

of ways. Virtually all of these formulations, however, employ

one Or more synonyms for causation. See, e.g., Cooper v.

Federal Reserve Bank, 467 U.S. 867, 875 (1984) (emphasis

added) (question is whether “the particular employment deci-

sion at issue was made on the basis of race”); International Bhd.

of Teamsters v. United States, 431 U.S. 324, 358 (1977) (em-

phasis added; footnote omitted) (question is whether “an

employment decision was based on a discriminatory criterion il-

legal under the Act”); McDonald v. Santa Fe Trail Transp. Co..,

427 U.S. 273, 282 n.10 (1976) (emphasis added) (“no more is re-

quired to be shown than that race was a ‘but for’ cause’).

Title VII’s legislative history leads to the same conclusion.

One of the most pointed objections to the legislation that even-

tually became Title VII was that it would impose liability on an

employer for entertaining bad thoughts. As Senator Ervin put it

in an extended colloquy with Senator Case, the Republican

floor manager of Title VII, it was feared that Title VII was a

“thought control bill” (110 Cong. Rec. 7254 (1964)). Senator

Case rejected this claim in the strongest terms, noting (ibid. (em-

phasis added)) that the defendant “must do or fail to do

something in regard to employment. There must be a specific

external act, more than a mental act. Only if he does the act

because of the grounds stated in the bill would there by any legal

consequences.” As this makes clear, Title VII does not impose

liability for discriminatory animus without more. It imposes

individual of employment opportunities or otherwise adversely affect his

Status as an employee, because of such individual’s race, color, religion, sex,

or national origin.”

* See, e.g., Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499, 508, 111

P. 534, 538 (1910) (“To trace an injurious distinction from the use of the

phrase ‘because of,’ instead of the phrase ‘caused by’ is merely logomachy.”).

liability only when a discriminatory motive causes an adverse

decision with respect to the compensation, terms, conditions, or

privileges of employment.

It would, of course, have been highly unusual had Title VII

not required some causal link between an illegal motive and the

challenged employment decision. Throughout the law of torts,

contracts, and those aspects of criminal law where liability is

defined in terms of bringing about a proscribed result, it is not

enough to show that the defendant violated a legal rule and that

the plaintiff suffered a harm; it is also necessary to prove that

the breach of duty caused the harm. See generally O. Holmes,

The Common Law 160 (1881); Pound, Causation, 67 Yale L. J.

1, 10-14 (1957); cf. Valley Forge Christian College v. Americans

United For Separation of Church & Siate, 454 U.S. 464, 472

(1982). For example, a defendant may act negligently in breach

of a general duty of care, but he is not liable in tort unless his

negligence causes harm to the plaintiff. See Restatement (Se-

cond) of Torts § 430 (1965). The causal language of Section

703(a) shows that Congress legislated the same understanding

when it enacted Title VII.

B. Causation Is Established if an Illegal Motive Was Sufficient by

Itself for an Adverse Employment Decision, or if an Illegal

Motive Was Necessary in Combination with Another Motive

or Motives for the Decision

Although causation is plainly an element of Title VII liability,

neither the statute nor this Court’s decisions specify how causa-

tion is to be defined. The only significant legislative history that

sheds light on this question occurred when Senator McClellan

introduced an amendment that would have modified Section

703(a) to provide that a Title VII violation could be found only

if an employment decision was taken “sole/y because of” an im-

permissible motive. In effect, the McClellan amendment would

have eliminated any possibility of Title VII liability in mixed

motive cases — where an employment decision is in part the pro-

duct of discriminatory motives, and in part the product of non-

discriminatory motives. The Senate rejected the amendment, as

did the House (see 110 Cong. Rec. 2728, 13838 (1964)). In op-

posing the proposal, Senator Case remarked (id. at 13837):

The difficulty with this amendment is that it would render

title VII totally nugatory. If anyone ever had an action that

was motivated by a single cause, he is a different kind of

animal from any I know of. But beyond that difficulty, this

amendment would place upon persons attempting to prove

a violation of this section, no matter how clear the violation

was, an Obstacle so great as to make the title completely

worthless.

The rejection of Senator McClellan’s proposed amendment is

persuasive evidence that Congress contemplated that Title VII

liability could be established where the employment decision is

the product of multiple or “mixed” motives. See McDonald v.

Santa Fe Trail Transp. Co., 427 U.S. at 282 n.10 (Title VII

plaintiff need not show “that he would have in any event been

rejected or discharged solely on the basis of his race, without

regard to [other] alleged deficiencies”). But beyond that, the

legislative history, like the statute itself, provides little explicit

guidance in defining what role a discriminatory motive must

play in producing an employment decision before it can be

called a “cause.”

The problem is, however, a familiar one in the law. As every

common lawyer knows, any event —and certainly an event as

complex as an employment decision—may be described as the

consequence of literally an infinite number of antecedents.

“This is the ‘cone’ of causation, so called because, since any

event has a number of simultaneous conditions, the series fans

out as we go back in time.” H. Hart & T. Honore, Causation in

the Law 69 (2d ed. 1985) (citation omitted). The task for the

courts is to pick out of the infinite manifold of antecedents

those which it is sensible, relative to the purpose at hand, to em-

phasize as the cause or causes of an event.’ As Congress im-

* For instance, when describing the cause of a fire the presence of oxygen in

the environment may or may not be appropriately picked out for mention —if

the context is a scientific experiment or a space vehicle accident the mention

may be quite appropriate, while in a case of domestic arson it obviously would

not. See H. Hart & T. Honore, Causation in the Law 35 (2d ed. 1985).

plicitly recognized in rejecting the McClellan amendment, this

process cannot be accurately stated in terms of whether a par-

ticular factor is the sole cause of a particular event. Rather,

what is needed is an analytical framework for picking out for

special attention those antecedents which may be denominated

as causes as opposed to “mere” background conditions.

The lower courts are divided on how to define the requisite

standard of causation in cases in which one of the par-

ties—generally the defendant—has made an issue of the

multiplicity of motives. Some courts believe that Title VII re-

quires proof that the discriminatory motive was a necessary con-

dition or “but for” cause of the employment decision. See, e.g.,

Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.

1985). In this view, there can be no liability under Title VII if the

same decision would have been reached in the absence of an il-

legal motive. Other courts hold that Title VII requires proof

that the discriminatory motive was a “motivating factor” or a

“significant factor.” See, e.g., Fields v. Clark University, 817

F.2d 931 (Ist Cir. 1987). The courts that have adopted the

“necessary condition” or “but for” standard have done so, at

least in part, on the understanding that this is the minimal

definition of causation traditionally required by the common

law. In contrast, the courts that have rejected that test in favor

of the “motivating factor” standard have cited decisions of this

Court adjudicating constitutional claims (see Village of Arl-

ington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S.

252, 270 (1977); Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 285-286 (1977)), and the concern that the

“but for” test is too stringent a burden.

We agree with those courts that look to traditional judicial

understandings of causation—/.e., the common law —as the

benchmark for defining causation under Title VII. Contrary to

the usual formul:tion by these courts, however, we do not

understand the common law to require the plaintiff to make a

showing of “but for” causation in every case. A more accurate

description of the common law test for causation, we think, is

that an illega! motive is a “cause” of a given outcome if the

motive was sufficient by itself to produce the outcome, or if it

was a necessary element in any set of factors that together was

sufficient to produce the outcome. See H. Hart & T. Honore,

supra, at 107-129; Wright, Causation in Tort Law, 73 Cal. L.

Rev. 1735, 1789-1790 (1985). This is not the same as “but for”

causation, because an illegal motive can be a cause of an out-

come even if a legitimate motive or a set of legitimate motives

was also sufficient to produce that outcome.

This is essentially the test for causation under the Restatement

(Second) of Torts (1965). Section 431 of the Restatement pro-

vides that negligent conduct is a “cause of harm to another if” it

is “a substantial factor in bringing about the harm.” Section 432

of the Restatement then states:

(1) Except as stated in Subsection (2), the actor’s

negligent conduct is not a substantial factor in bringing

about harm to another if the harm would have been sus-

tained even if the actor had not been negligent.

(2) If two forces are actively operating, one because of

the actor’s negligence, the other not because of any miscon-

duct on his part, and each of itself is sufficient to bring

about harm to another, the actor’s negligence may be

found to be a substantial factor in bringing it about.

In other words, Section 432(1) initially provides that the actor’s

negligence is a cause (“substantial factor” in the Restatement’s

terms) only if it is a necessary condition (“but for” cause) of the

harm; but Section 432(2) then adds the proviso that the actor’s

negligence is also a cause if it was sufficient to bring about the

harm, even if other forces were present that were also sufficient

to generate the harm. In the end, therefore, the Restatement re-

jects a rigid “but for” notion of causation in favor of a sufficien-

cy view.®

* The common law test of causation differs from the “but for” view of cause

in cases of overdetermined outcomes. A motive can be a “cause” under the

common law test even if another motive or set of motives was sufficient for

We believe that the common law test outlined above should

apply to Title VII cases in the following way. Suppose a partner-

ship has a rule that it will deny admission to anyone who

receives four or more negative votes. If a candidate receives two

negative votes because she is a woman, and three because of her

abrasive personality, then the two discriminatory votes would

be a cause of the decision (the discriminatory votes are a

necessary element of a set of four or more votes sufficient to

produce the outcome). Alternatively, if the plaintiff receives

four negative discriminatory votes, and five negative votes

based on her personalty, then the discriminatory votes would

also be a cause (the discriminatory votes being sufficient in

themselves to produce the outcome), even though it cannot be

said that the discriminatory votes are a “but for” cause. Only if

the outcome. A motive is a cause if it was sufficient, by itself or in combina-

tion with other factors, to produce the result. The common law thereby avoids

the troublesome implication of “but for” causation that, in cases with multiple

sufficient causes, there would be mo cause. As Hart and Honore state, in the

case of dual sufficient conditions, “a legal system should treat each as the

cause rather than neither.” H. Hart & T. Honore, supra, at 124. Accord W.

Prosser, Law of Torts 239 (4th ed. 1971).

The somewhat confusing formulation of the Restatement, which appears

first to embrace and then to reject the “but for” test, reflects more a dispute

among academics than a substantial uncertainty in the case law or even in the

intuitions Of common sense. Common sense notions of causation reflect sim-

ple models in which a force is applied to produce a result—e.g., a brick is

hurled through a window, or a person is pushed in front of a train. See Eps-

tein, A Theory of Strict Liability, 2 J. Legal Stud. 151, 166-169 (1973). And

such models implicitly depend on a sufficiency view of causation. Some legal

scholars, believing both common sense and the common law to be insufficient-

ly scientific and rigorous, proposed distinguishing between “cause in fact” —a

supposedly scientific and rigorous test—and “proximate cause” or “legal

cause” — an additional hurdle to be cleared by plaintiffs which was conceded to

be “evaluative” and to allow for policy judgments. See R. Keeton, Legal Cause

in the Law of Torts vii-ix (1963); L. Green, Rationale of Proximate Cause 200

(1927). As Hart & Honore demonstrate, however, the case law does not accord

with this neatly dichotomous view. Moreover, any analytic rigor dissolves in

the face of troublesome counterexamples, such as those of multiple sufficient

causes. At the end of the day, the common law, common sense, and the

Restatement all support a sufficiency view.

the discriminatory votes were not sufficient either by themselves

or in combination with other votes could it be said that the

discriminatory votes were not a cause of the decision. For exam-

ple, if a candidate received three negative votes because she was

a woman, but no other negative votes, and the partnership then

decided unanimously for economic reasons not to make any

new partners, the three negative votes would not be sufficient in

themselves to produce the result, nor would they be a necessary

element in any set of conditions sufficient to produce the result

(the decision to defer making partners on economic grounds

being sufficient in itself without the added element of the

discriminatory votes).”

Because this concept of causation relies on the ideas of

“necessity” and “sufficiency,” it comports with what we mean

when we say that something “caused” a result —/.e., that it con-

tributed to, or made a difference to, the outcome. Indeed, this

may be implicit in the lower court decisions that adopt a

“significant factor” test. To say that intentional discrimination

was a “significant factor” or a “motivating factor” necessarily

implies that it was a factor—that it affected the cutcome. On

the other hand, to denominate a motive a “cause” if it did not

produce the outcome, either by itself or in combination with

other elements, is te abandon the statutory requirement of

causation.

~ The common law view that we propose is not foreclosed by McDonald v.

Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). The Court in McDonald held

that an employer must apply its disciplinary rules “ ‘alike to members of all

races’ " (id. at 282, quoting McDonnell Douglas Corp. .. Green, 411 U.S. 792,

804 (1973)). In dictum, the Court noted that a plaintiff need not prove that he

would have “been rejected or discharged solely on the basis of his race,

without regard to the alleged deficiencies; * * * no more is required to be

shown than that race was a ‘but for’ cause” (427 U.S. at 282 n.10). This state-

ment was not necessary to the Court's holding, and it simply indicates that

Title VII liability attaches if the plaintiff proves “but for” causation; the state-

ment does not foreclose liability by proof of a different type of causa-

tion — one based on the notion of sufficiency.

C. In Determining Liability Under Title VII, “Mixed Motive”

Cases Should Be Treated the Same as “Single Motive” Cases

In assessing the role of causation under Title VII, a number of

lower courts have suggested that either the definition of causa-

tion or the burden of persuasion in establishing causation

should vary depending on whether the case is categorized as one

involving “mixed motives” or “single motives.” See, e.g.,

Blalock v. Metals Trades, Inc., 775 F.2d 703, 709-712 (6th Cir.

1985). We think this is a mistake. As noted above, Congress

recognized that virtually every disparate treatment case will to

some degree entail multiple causes. Thus, if the elements of Title

VII liability or the burden of persuasion differs depending on

the “proper” categorization of a case as involving either mixed

or single motives, the predictable result will be pointless litiga-

tion over what label should be affixed to cases, rather than on

the u/timate question in every Title VII case: “whether the

employer is treating ‘some people less favorably than others

because of their race, color, religion, sex, or national origin.’ ”

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)

(quoting /nternational Bhd. of Teamsters v. United States, 431

U.S. at 335 n.15).

Nor do we think this Court’s decisions in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Com-

munity Affairs v. Burdine, 450 U.S. 248, 256 (1981), support

the notion that disparate treatment cases should be divided be-

tween those involving single motives and those involving mixed

motives. McDonnell Douglas and Burdine adopted the now

familiar three-step procedural process for resolving disparate

treatment cases. Under this process, the plaintiff must initially

establish a prima facie case of employment discrimination;® if

the plaintiff is successful, the defendant must then come for-

* The plaintuitf must show that she (1) is a member of a protected class; (2)

that she sought and was.qualified for an employment opportunity which was

a\ ailable; (3) that despite her qualifications she was rejected; and (4) that after

her rejection the employer continued to seek qualified applicants for the posi-

tion (see McDonnell Douglas, 411 U.S. at 802).

ward with evidence tending to show that the adverse action was

taken for legitimate, nondiscriminatory reasons; if the defend-

ant’s evidence raises a genuine issue of fact, then the plaintiff

must introduce evidence tending to show either that the defend-

ant’s explanation “is unworthy of credence,” or that “a

discriminatory reason more likely motivated the employer”

(Burdine, 450 U.S. at 256). Although a number of courts have

suggested that this framework applies only to single motive

cases, and that mixed motive cases must be analyzed under a

different framework, we think that the McDonnell Douglas-

Burdine framework is well suited to a// disparate treatment

cases.

This Court’s decisions make clear that the McDonnell

Douglas-Burdine framework is not a process for uncovering

which of two possible explanations is the “sole” cause of an

employment decision. Rather, the framework employs what are

in effect a series of “presumption(s]” about causation in order to

simplify the production of evidence and proof in disparate treat-

ment cases and to frame the contested factual issues with “suffi-

cient clarity” (Burdine, 450 U.S. at 255). Thus, if the plaintiff

establishes a prima facie case and the defendant fails to in-

troduce evidence of a legitimate, nondiscriminatory explanation

for the employment decision, this “in effect creates a presump-

tion that the employer unlawfully discriminated against the

employee” (id. at 254). See also Furnco Constr. Corp v. Waters,

438 U.S. 567, 577 (1978). Similarly, if the defendant comes for-

ward with a legitimate, nondiscriminaiory explanation, but the

plaintiff demonstrates to the satisfaction of the trier of fact that

the explanation is a pretext, then again the trier of fact is enti-

tled to presume from the plaintiff's prima facie case that the

decision was caused by discrimination. Burdine, 450 U.S. at

256. On the other hand, if the defendant comes forward with a

legitimate, nondiscriminatory explanation, and the plaintiff

fails to show that it is a pretext, then the trier of fact is entitled

to presume that the employment decision was mot caused by

discrimination.

Clearly, the fact that the McDonnell Douglas-Burdine

framework relies on certain presumptions about causation in no

way suggests that employment decisions are always or even

usually the product of one cause. Indeed, Burdine expressly

contemplates that the plaintiff may attempt to answer the

defendant’s explanation by introducing evidence tending to

show an alternative, discriminatory explanation for the deci-

sion. If the plaintiff follows this course, then the court is

presented at trial with what is in effect a case of mixed motives:

the defendant has offered one explanation, and the plaintiff

another. It would be artificial to insist in such a case that the

“true” explanation must always be either one or the other, and

never (as Senator Case indicated (see page 11, supraj) some

combination of both. And it would be even more problematic to

insist that, if the explanation is some of both, the case must be

decided under some altogether different doctrinal rubric. To

determine liability by first applying the McDonnell Douglas-

Burdine framework and then, if it appears at the trial that there

were mixed motives, to superimpose some burden-shifting pro-

cedure on top of this framework, would be to compound pro-

cedural refinements in a confusing and ultimately unproductive

fashion. As we explain below (pages 21-24, infra), we think that

the burden-shifting adopted by Mr. Healthy Sch. Dist. Bd. of

Educ. v. Doyles, 429 U.S. 274 (1977), is appropriately brought

to bear in Title V!I suits at the remedial stage, where distinct

issues are involved and there is a separate statutory basis impos-

ing the burden on the defendant. To apply this doctrine at the

liability stage, however, would simpiy make the “inquiry even

more difficult by applying legal rules which were devised to

govern ‘the basic allocation of burdens and order of presenia-

tion of proof’ in deciding this ultimate question.” United States

Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716

(1983) (citation omitted).

In sum, we believe that a// Title VII disparate treatment cases

should be resolved under the McDonnell Douglas-Burdine

framework, whether they involve one, two, or multiple possible

causes. In many of these cases, the issue of causation wiil be

resolved by presumption, and thus need not be confronted

directly. But when all the presumptions are exhausted, the court

must then “decide the ultimate factual issue in the case”

(Aikens, 460 U.S. at 715). As set forth in Section 703(a)(1), 42

U.S.C. 2000e-2(a)(1), that issue is whether the plaintiff suffered

discrimination “because of” his or her race, color, religion, sex,

or national origin.

D. The Plaintiff Bears the Burden of Persuasion on Causation

Since causation is a necessary element of Title VII liability,

then under this Court's decision in Burdine it follows that the

plaintiff has the burden of persuasion on this element. The

Court noted in Burdine that the “ultimate burden of persuading

the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all times with the plaintiff” (450

U.S. at 253). In other words, the plaintiff bears the burden of

“persuading the court that she has been the victim of intentional

discrimination” (id. at 256 (emphasis added)). And, as we have

shown, the plaintiff is such a “victim” only if the employer’s il-

legal motive caused the adverse employment decision.

That the plaintiff bears the burden of persuasion on the ele-

ment of causation is reinforced by the legislative history of Title

VII. In the Senate debates, Senator Dirksen offered the follow-

ing objection to the proposed House bill (10 Cong. Rec. 7218

(1964)): “If the employer discharges a Negro, he must prove that

the dismissal has nothing to do with race. When an employer

promotes or increases the pay of a white employee, he must

show that he was not biased against the Negro worker who was

not promoted.” Senator Clark, the Democratic floor manager

of Title VII, corrected Senator Dirksen’s misunderstanding

(ibid. (emphasis added)): “The Commission must prove by a

preponderance [of the evidence] that the discharge or other per-

sonnel action was because of race.” This allocation of the

burden of persuasion on the charging party was reiterated by

Senator Case as part of his extended exchange with Senator

Ervin over whether Title Vil would impose liability for

discriminatory thoughts (id. at 7255 (emphasis added)): “The

only way a state of mind can be proved is by an external act, or

by a pattern of acts, of a man, or by a treatment that was given.

The burden of proof is on the plaintiff.”

There is no specia! need in the Title VII context to deviate

from the general tort rule that the plaintiff bears the burden of

showing causation (see Restatement (Second) of Torts § 433B

(1965)). The common law view of causation that we outlined

above, in contrast to a strict “but for” view, does not impose an

undue burden on Title VII plaintiffs. The plaintiff need prove

causation, like any other element of liability, only by a

preponderance of the evidence. In a case of multiple motives,

therefore, the plaintiff must show only that it was more likely

than not that the discriminatory motive was sufficient to pro-

duce the result. The plaintiff need not exclude the possibility

that legitimate reasons were also sufficient to produce the out-

come. Moreover, although the defendant will usually have bet-

ter access to facts about why the plaintiff was denied an employ-

ment opportunity, this unevenness is largely eliminated because

the defendant already has the burden of producing any evidence

tending to show a legitimate explanation at stage two of the

McDonnell Douglas-Burdine framework. As this Court has

observed, the defendant has “an incentive to pursuade the trier

of fact that the employment decision was lawful” and thus “nor-

mally will attempt to prove the factual basis for its explanation”

(Burdine, 450 U.S. at 258).

On the other hand, a rule that required the burden of proot

on causation to shift to the defendant would present severe

problems in defining the “threshold” showing that the plaintiff

would have to make before such a shift would take place. The

lower courts that have endorsed burden-shifting have generally

required the plaintiff to show that an illegal motive was a

“significant factor” or a “motivating factor” in the decision

before shifting the burden to the defendant (see page 12, supra).

If this means the plaintiff must show that the illegal motive

made a difference to the outcome —that it was a necessary ele-

ment of a set of condi.ions sufficient to yield the result -- then

this is just another way of saying that the plaintiff must show

causation to establish liability: the position we endorse. But if it

means that discrimination must be present, but that it need not

be such as to have contributed to the outcome, then it is hard to

differentiate this from shifting the burden to the defendant

merely upon the showing that there was “discrimination in the

air.” Other possible formulations of the threshold show-

ing —such as that there is “some evidence” of causation — would

also involve radical departures from established formulations

for apportionment of the burden of proof in civil litigation.

There are no principles that can be derived from the language of

Title VII, its legislative history, or common law precedent that

instruct how much evidence the plaintiff must produce — short

of the traditional preponderance standard — before the burden

shifts. Accordingly, there is no legal justification for treating

the plaintiffs proof of causation “differently from other

ultimate questions of fact.” Aikens, 460 U.S. at 716.

il. A DEFENDANT MAY LIMIT THE PLAINTIFF'S

REMEDY BY SHOWING THAT THE EMPLOYMENT

DECISION WOULD HAVE BEEN THE SAME WITHOUT

THE ILLEGAL CAUSE

Although causation is a necessary element of liability under

Title VII, and although the plaintiff bears the burden of persua-

sion on this issue as on all other elements of liability, it does not

follow that the plaintiff in a disparate treatment action must

necessarily bear the burden of persuasion of showing that she is

entitled to the fullest measure of relief.

In Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, supra,

the plaintiff alleged that he was not rehired as a teacher because

he had engaged in constitutionally protected speech. This Court

held that “the burden was properly placed upon” the plaintiff

“to show that his conduct was constitutionally protected,” and

that this conduct “was a ‘motivating factor’ ” in the school

board's decision (429 U.S. at 287 (quoting Village of Arlington

Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. at 270-271

& n.21)). As we understand it, a “motivating factor” is simply a

“cause” as that term is defined by the common law—i.¢., a

necessary element in a set of factors that are jointly sufficient to

produce the outcome. See Mt. Healthy, 429 U.S. at 286 (“A

borderline or marginal candidate should not have the employ-

ment decision resolved against him because of constitutionally

protected conduct.”); see also NLRB v. Transportation Mgmt.

Corp., 462 U.S. 393, 395 (1983) (General Counsel of NLRB has

burden of showing that “antiunion animus contributed to the

employer’s decision to discharge an employee”).

The Court in Mt. Healthy, however, further held that the

defendant may attempt to convince the trier of fact “that it

would have reached the same decision * * * even in the absence

of the protected conduct” (429 U.S. at 287). The Court in effect

qualified the result that would have obtained under the common

law’s sufficiency standard by allowing the defendant to show

that the plaintiff would obtain an undeserved windfall if he

received back pay for the failure to place him in a job which

would not have been his in any event. See id. at 285; see also

Transportation Mgmt. Corp., 462 U.S. at 401 (employer shown

to have acted at least in part out of antiunion animus has

burden to show that “he would have acted in same manner for

wholly legitimate reasons”).?

Similarly, Title VII gives a defendant the opportunity to

prove that it would have reached the same employment decision

in the absence of an illegal cause. Section 706(g) of Title VII, 42

U.S.C. 2000e-5(g), reveals that Congress had the same concern

* Mt. Healthy’s reluctance to award the full measure of relief in cir-

cumstances where the common law would have imposed liability — and the full

measure Of damages — may perhaps be explained by the fact that the common

law was usually concerned with awarding compensation for discrete harms in-

curred in the past, whereas Mt. Healthy, Transportation Mgmt., and Title VI!

are concerned with on-going employment relationships. Just as the common

law is reluctant to award specific enforcement of an employment contract (see

Restatement (Second) of Contracts § 367 (1981)), so the Court and Congress

have been reluctant to require an employer to hire, reinstate, cr promote an

employee who ts not qualified to perform the employer's work, even if the

employee has been the victim of intentional discrimination at the hands of the

employer. Also, because of the on-going nature of the employment relation-

ship, injunctive relief provides a meaningful form of redress here, which is not

true in the case of discrete injuries incurred in the past.

as the Court in Mt. Healthy: that a plaintiff should not be

placed in a better position than she would have been in the

absence of an illegal motive. This section provides that, if a

court finds that liability is established, it may “order such <f-

firmative action as may be appropriate.” But Section 706(g)

goes on to provide that the court may not order “hiring,

reinstatement * * * promotion * * * [or] back pay” if the court

finds that employment decisien was “for any reason other than

discrimination.” In other words, in cases where there are multi-

ple sufficient causes for the employment decision, and one of

those causes is a set containing only nondiscriminatory motives,

Section 706(g) provides that reinstatement and backpay may not

be awarded, because the set of sufficient nondiscriminatory

motives was a “reason other than discrimination.”

Because Section 706(g) deals with the question of remedies, as

distinguished from the elements of a Title VII violation, it is

proper to place the burden on the defendant to prove that a

given employment decision would have been the same in a

discrimination-free environment. See Local 28, Sheet Metal

Workers’ Int'l Ass’n v. EEOC, 478 U.S. 421, 447 (1986) (plurali-

ty opinion); Transportation Mgmt. Corp., 462 U.S. at 402. If

the defendant makes such a showing, the plaintiff is made whole

by an award of attorney’s fees and an injunction against future

discrimination. In effect, the defendant is ordered to cease

discriminatory activity, which enhances the plaintiff's employ-

ment Opportunities in the future. But the defendant need not

hire, reins.ate, promote or provide backpay to the plaintiff,

because such relief would “place an employee in a better posi-

tion as a result of the [defendant’s discriminatory conduct] than

he would have occupied had [the defendant] done nothing.” M7.

Healthy, 429 U.S. at 285.'°

‘

tiffs burden under Section 703, should be governed by the “preponderance of

the evidence” standard. The “preponderance” standard is the normal rule in

civil litigation, and there is no reason that a different rule should apply under

the civil rights laws. See Herman & MacLean v. Huddleston, 459 U.S. 375, 390

(1983). Cf. Kungws v. United States, No. 86-228 (May 2, 1988), slip op. 14

Although the Court has not expressly endorsed this reading

of Section 706(g), it has reached analogous conclusions in

related Title VII contexts. See Fast Texas Motor Freight

System, Inc. v. Rodriguez, 431 U.S. 395, 404 n.9 (1977) (noting

that if a “company’s failure even to consider * * * applications

was discriminatory,” then “the company was entitled to prove at

trial that the respondents * * * were not qualified and would

not have been hired in any event”); I/nternational Bhd. of

Teamsters v. United States, 431 U.S. at 359 (once class liability

is found, individual relief can be limited if defendant shows that

he would have made the challenged decision for lawful reasons);

see also Fadhi v. City & County of San Francisco, 741 F.2d

1163, 1167 (9th Cir. 1984) (Kennedy, J.) (“the burden of proof is

on the employer * * * and to avoid back pay the employer must

show that, absent the discrimination, the applicant * * * would

not have been hired”); Toney v. Block, 705 F.2d 1364, 1366

(D.C. Cir. 1983) (Scalia, J.) (“it is unreasonable and destructive

of the purposes of Title VII to require the plaintiff to establish

* * * the difficult hypothetical proposition that, had there been

no discrimination, the employiment decision would have been

made in his favor”). Thus, Section 706(g) should be construed

to allow the defendant in a disparate treatment case to prove

that, because the adverse employment decision would have been

made in any event for legitimate, nondiscriminatory reasons,

the plaintiff will be made whole by an award of attorney’s fees

and an injunction against future discrimination.

Hl. STEREOTYPING, WITHOUT MORE, DOES NOT CON-

STITUTE A VIOLATION OF TITLE VII

The district court rested its finding of intentional discrimina-

tion on the presence of comments reflecting sexual “stereotypes”

in petitioner’s decision-making process —/.e., comments made

(“the ditticulty of establishing ‘but for’ causality, by clear, unequivocal, and

convincing evidence many years after the fact, is so great that we cannot con-

ceive that Congress intended such a burden to be met”). Thus, the lower courts

in this case clearly erred in using a “clear and convincing” evidence standard in

this regard (Pet. App. 2Sa, $9a)

by some evaluating partners about how women should or most

women do comport themselves—coupled with a finding that

petitioner did nothing to disavow these comments or to ensure

that they did not affect the ultimate decision. These findings, we

believe, are insufficient to establish liability under Title VII.

Title VII, as we have noted above, is not a “thought control

bill”; “[t}here must be a specific external act, more than a mental

act.” 110 Cong. Rec. 7254 (1964) (Sen. Case). See also Meritor

Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (sexual harass-

ment violates Title VII only if it is sufficiently severe to alter the

conditions of the victim’s employment). Stereotyping, as de-

fined by the courts below, is the harboring and perhaps expres-

sion of certain opinions about behavior appropriate to or

typical of certain groups. The harboring and expression of such

views, by itself, does not violate Title VII. As relevant here, Ti-

tle VII bans discriminatory treatment because of sex, not

stereotypical thoughts.

Of course, this does not mean that stereotyping is irrelevant

under Title VII. Such opinions and their expression are general-

iy offensive to members of the group so characterized, even

where the stereotype may not be intrinisically demeaning. And

the reason for that, of course, is that persons properly resent

being judged as members of groups rather than as individuals.

The offense is compounded where the stereotype is unflattering,

or suggests that the members of the group possess undesirable

characteristics. Such statements are highly probative evidence of

discriminatory intent. Indeed, the repeated utterance of highly

offensive stereotypes might in appropriate contexts be enough

in itself to constitute a form of racial or sexual harassment justi-

fying the imposition of Title VII liability. See Henson v. City of

Dundee, 682 F.2d 897, 901-902 & n.4 (11th Cir. 1982).

But where the claim is made, as it is here, that there has been

discrimination because of sex in making a particular employ-

ment decision, more is needed than the showing that those who

made the decision harbored or even gave voice to stereotyping

opinions. Those opinions must be shown in some way to have

disadvantaged respondent in her request for promotion and

thus have played a causal role in her being denied that promo-

tion. As we have said, even a positive or neutral stereotype will

often be offensive to its victim, but the bigot (and the harboring

of stereotypes is a pretty good definition of bigotry) may in fact

be disposed in favor, for stereotypical reasons, of an unsuc-

cessful applicant for a position. In order to make out a case of

discriminatory denial it must be shown that the stereotyping was

part of a motive which improperly disadvantaged the applicant.

Although in many instances stereotyping will provide strong

evidence of discrimination, a court may not jump over the in-

termediate step of showing discriminatory disadvantage and

pass directly from stereotyping to liability.

In short, a narrow focus on “stereotyping” obscures the crux

of liability under Title VII—disparity of treatment because of

sex Or some other proscribed criterion. An employer may of

course legally base employment decisions on concerns that an

employee is too aggressive, abrasive, or profane. But in doing

so, the employer must apply its standard evenhandedly; “ag-

gressiveness,” “abrasiveness” and “bad language” cannot be the

bases for rejecting female, but not male, candidates. In all

events, use of and controversy over the meaning of the term

“stereotype” should not distract the parties and the court from

the ultimate issue: whether the plaintiff can show by a

preponderance of the evidence that she was denied an employ-

ment Opportunity because of her sex.

Iv. THE CASE SHOULD BE REMANDED FOR RECON-

SIDERATION IN LIGHT OF THE CORRECT LEGAL

STANDARDS

As the foregoing discussion suggests, we believe that both the

court of appeals and the district court committed fundamental

legal errors. The court of appeals held (Pet. App. 22a-23a, 25a)

that the burden of persuasion on causation shifts to the defend-

ant at the liability stage, and requires the defendant to, prove by

clear and convincing evidence that the same decision would

have been made notwithstanding the presence of discriminatory

animus. The district court also appears to have adopted (/d. at

54a) an improper standard of causation, and may have endorsed

a theory of liability based on the mere presence of

“stereotyping” in the decision-making process. The district

court never found that discrimination caused petitioner’s deci-

sion —i.e., that respondent was treated differently because she is

a woman. Hence, the case should be remanded to the district

court to determine whether discrimination, as evidenced inter

alia by stereotyping comments, caused the decision not to pro-

mote respondent.

There may be sufficient evidence in the record to support a

finding that an illegal motive caused petitioner’s employment

decision. The district court found that the head partner at the

office where respondent worked was the person “responsible for

telling [respondent] what problems the Policy Board had iden-

tified with her candidacy” (Pet. App. 52a). This partner, in

counseling respondent about what she should do to overcome

the reservations of the Policy Board, told respondent “to walk

more femininely, talk more femininely, dress more femininely,

wear make-up, have her hair styled, and wear jewelry” (ibid.

(footnote ommitted)). This evidence could support a finding

that the decision to deny respondent partnership was caused, at

least in part, by an impermissible motive.'' Comments made by

evaluating partners—e.g., that respondent should take a

“course at charm school” (id. at 51a) and that she is “macho”

(id. at 52a)—are consistent with this assessment of the reasons

for the Policy Board’s decision. These comments, whether term-

ed “stereotypes” or something else, may be appropriately con-

sidered as evidence that respondent’s sex determined the out-

come of the evaluation process and that she was treated less

favorably because she is a woman. See Furnco Constr. Corp. v.

Waters, 438 U.S. at 578 (evidence of discriminatory intent may

“take a variety of forms”).

'' The Equal Employment Opportunity Commission has noted that the ex-

pression of stereotypical attitudes about whether women should be aggressive

is evidence of disparate treatment because of sex. See Dec. No. 74-15, 1983

CCH EEOC DEC 4 6394 (Aug. 7, 1973).

The district court found that “[d]iscriminatory stereotyping

of females was permitted to play a part” in the partnership deci-

sion (Pet. App. 58a). On the other hand, the district court stated

that petitioner “had legitimate, nondiscriminatory reasons for

distinguishing between [respondent] and the male partners with

whom she compares herself” (id. at 48a). On remand, the

district court should clarify its findings by asking the critical

question under Title VII—did sex discrimination cause peti-

tioner’s decision?'? And the court should so find only if it

believes that respondent showed that it is more likely than not

that her sex was a necessary element of a set of reasons jointly

sufficient to cause the decision. In other words, respondent will

have established Title VII liability if the district court finds that

she was rejected because of negative votes that were motivated

by the view that she is too aggressive or abrasive for a woman.

In answermnyg this question, cae district court will of Course be addressing

ludve Wilhams’ concern (Pet) App. 38a) that there may be no causal link be

Iween the stercotypical comments and petitioner's employment decision

CONCLUSION

The judgment of the court of appeals should be vacated and

the case remanded to the district court for further proceedings.

Respectfully submitted.

CHARLES FRIED

Solicitor General

Wat BRADFORD REYNOLDS

issistant Attorney General

THOMAS W. MERRILI