Amicus Curiae Brief — Desert Palace, Inc. v. Costa

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No.02-679 FEB 28 SS

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OM"CE OF (HR QLae |

IN THE = eeiaiermiaa

Supreme Court of the United States

DESERT PALACE, INC., d/b/a

CAESARS PALACE HOTEL & CASINO,

Petitioner,

Vv.

CATHARINA F. COSTA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL AND

THE CHAMBER OF COMMERCE OF THE UNITED

STATES IN SUPPORT OF PETITIONER

STEPHEN A. BOKAT ANN ELIZABETH REESMAN

ELLEN D. BRYANT KATHERINE Y.K. CHEUNG

NATIONAL CHAMBER Counsel of Record

LITIGATION CENTER, INC. MCGUINESS NORRIS &

1615 H Street, N.W. WILLIAMS, LLP

Washington, D.C. 20062 1015 Fifteenth Street, N.W.

(202) 463-5337 Suite 1200

f Attorneys for Amicus Curiae seo pe _ eeees

The Chamber of Commerce ‘97? ’®””

of the United States Attorneys for Amicus Curiae

Equal Employment Advisory Council

February 28, 2003

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sehr AES lage a ae ae TABLE OF CONTENTS

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A MIXED-MOTIVES ANALYSIS IS APPRO-

PRIATE ONLY WHEN THERE IS EVIDENCE

THAT A DECISIONMAKER OPENLY

REFERRED TO A PROTECTED CHARAC-

TERISTIC TO EXPLAIN A CHALLENGED

EMPLOYMENT DECISION OR RELIED ON A

ay Stet Be FACIALLY DISCRIMINATORY POLICY

LC Tes Se Car ga ei | eae I. THIS COURT’S HOLDING IN PRICE

eT Bre Bien WATERHOUSE, A STANDARD THE 1991

CIVIL RIGHTS ACT DID NOT ALTER,

AND PRIOR NARROW INTERPRETATION

OF DIRECT EVIDENCE SUPPORT

LIMITING MIXED-MOTIVES ANALYSIS

ONLY TO SITUATIONS WHERE A

DECISIONMAKER OPENLY REFERRED

TO A PROTECTED CHARACTERISTIC TO

EXPLAIN A CHALLENGED EMPLOY-

MENT DECISION OR RELIED ON A

FACIALLY DISCRIMINATORY POLICY

A. Justice O’Connor’s Concurring Opinion in

Price Waterhouse v. Hopkins Requiring

Direct Evidence That a Protected Char-

acteristic Played a Substantial Role in an

Employment Action for a Mixed-Motives

Analysis States This Court’s Holding

(i)

il

TABLE OF CONTENTS—Continued

B. This Court Should Limit Mixed-Motives

Analysis Only to Situations Where There

Is Evidence a Decisionmaker Openly

Referred to a Protected Characteristic To

Explain a Challenged Employment Deci-

sion or Relied on a Facially Discriminatory

PE ccncenenennmnmnmesieemmecenatiememmmnnn

1. Justice O’Connor used a narrow inter-

pretation of direct evidence in Price

TE EE ae ae

2. The Court’s prior decisions limit

direct evidence to situations involving

direct consideration of a protected

ae

3. The decision below would make the

McDonnell Douglas line of cases

C. The 1991 Civil Rights Act Left Intact This

Court’s Holding in Price Waterhouse That

Direct Evidence Is Necessary for a Mixed-

Fe Se sicsinceusntentsenensnecmmecnessese

1. The Civil Rights Act does not refer to

the type or quantity of evidence neces-

sary to shift the burden of persuasion to

the defendant in a mixed-motives case ..

2. The Civil Rights Act’s legislative his-

tory shows Congress did not intend to

supersede the requirement for direct

evidence to proceed under a mixed-

ae cccccecceserssmssesccczecseseess0en:

12

12

13

15

16

16

EE EO

aE ee

-

II.

ill

TABLE OF CONTENTS—Continued

ALLOWING THE NINTH CIRCUIT’S

DECISION TO STAND WOULD

SEVERELY COMPROMISE AN _ EM-

PLOYER’S ABILITY TO DEFEND

AGAINST DISCRIMINATION CLAIMB.........

A. The Decision Below Would Turn Every

Discrimination Claim Into a Mixed-

Motives Case, Shifting the Burden of

Proof to the Employer Every Time..............

B. The Decision Below Significantly Under-

mines an Employer’s Defense to a Dis-

I cecrtnicnnccneneesncrencsnecsecscentate

nT cincciiiritnscnnneriniemnncmmntinanensenenaenesenaneseseees

Page

19

19

22

24

iV

TABLE OF AUTHORITIES

FEDERAL CASES - Page

American Tobacco Co. v. Patterson, 456 U.S. 63

(a 16

Connecticut Nat’l. Bank v. Germain, 503 U.S.

OEE 16, 17

Costa v. Desert Palace, Inc., 299 F.3d 838 (9th

CR, Fa coceesnennsnmessmnssssesmsemsmenesemamamesseias 3,4

Costa v. Desert Palace, Inc., 268 F.3d 882 (9th

Cir.), vacated, 274 F.3d 1306 (9th Cir. 2001)... 4

Faragher v. City of Boca Raton, 524 U.S. 775

EE 21

Fernandes v. Costa Bros. Masonry, Inc., 199

Ate 16

Fields v. New York State Office of Mental Retar-

dation and Developmental Disabilities, 115

BO 17

Fuller v. Phipps, 67 F.3d 1137 (4th Cir. 1995)...... 20

Furnco Constr. Corp. v. Waters, 438 U.S. 567

a 8

Hook v. Ernst & Young, 28 F.3d 366 (3d Cir.

ee 15

International Bhd. of Teamsters v. United States,

Oe 15

Marks v. United States, 430 U.S. 188 (1977)........ 5,11

McDonnell Douglas Corp. v. Green, 411 U.S.

passim

Medlock v. Ortho Biotech, Inc., 164 F.3d 545

(oj ) 17

Mount Healthy City Sch. Dist. v. Doyle, 429 U.S.

i eee 5, 13, 14

Price Waterhouse v. Hopkins, 490 U.S. 228

(a passim

Shaw v. Merchants’ Nat'l. Bank, 101 U.S. 557

(BFP) cececccssccssccesescensesscasesnsnsnssennssnnesensnssonssasesass 17

\

TABLE OF AUTHORITIES—Continued

Page

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502

IIe cesenseunesnennnennntiannateneniaieaninetsatinntntenmmmeines 8

Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S.

ee ctnrernccsvenantntintnessensariabiamntmenmmisinies 8,9

Trans World Airlines, Inc. v. Thurston, 469 U.S.

ee CUI schinsernnnerntetinninansieriataninainanaimeiniptaanss 14

U.S. Postal Serv. Bd. of Governors v. Aikens, 460

Se We a siesininsisesensenssintipinstnsiniennsncinaaunansinnaninicins 7

Watson v. Southeastern Pa. Transp. Auth., 207

On 17

FEDERAL STATUTES

Civil Rights Act of 1991,

opis SE a strsinicssiatnieneterercniapenienianesntenininienmmeeies passim

ie 0 i cererncencntenncnntasenmnntanann 16

42 U.S.C. § 2000e-5S(g)(2)(B) .............:0000. _— 16

Title VII of the Civil Rights Act of 1964,

RS passim

Fe ee Oe ctnccienctcrmnnennmetccsesenianes 7

LEGISLATIVE HISTORY

137 Cong. Rec. $15,476 (daily ed. Oct. 30,

EET ee 18

H.R. Rep. No. 102-40, pt. 1 (1991)................... 18, 19, 20

OTHER AUTHORITIES

David A. Cathcart & Mark Snyderman, The Civil

Rights Act of 1991, SF41 ALI-ABA Course of

Study 391 (Mar. 1, 2001) .............ccccccccssseeseeeeees 21

H. Mitchell Caldwell, et al., The Art and

Architecture of Closing Argument, 76 Tul. L.

Be eee SE EE icterncnrenentinsnaninnnenmeniusnesnte 23

vi

TABLE OF AUTHORITIES—Continued

Joseph J. Ward, A Call for Price Waterhouse II:

The Legacy of Justice O’Connor’s Direct Evi-

dence Requirement for Mixed-Motive Employ-

ment Discrimination Claims, 61 Alb. L. Rev.

a

Statement By The President (Nov. 21, 1991),

reprinted in Employment Policy Found., The

Civil Rights Act of 1991 Legislative History,

|

Page

IN THE

Supreme Court of the United States

No. 02-679

DESERT PALACE, INC., d/b/a

CAESARS PALACE HOTEL & CASINO,

Petitioner,

Vv.

CATHARINA F. COSTA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL AND

THE CHAMBER OF COMMERCE OF THE UNITED

STATES IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council and the Cham-

ber of Commerce of the United States respectfully submit this

brief as amici curiae.' Letters of consent from both parties

have been filed with the Clerk of the Court. The brief urges

this Court to reverse the decision below, and thus supports the

position of the petitioner, Desert Palace, Inc., dba Caesars

Palace Hotel & Casino.

' Counsel for amici curiae authored the brief in its entirety. No person

or entity, other than the amici, their members, or their counsel, made a

monetary contribution to the preparation or submission of the brief.

2

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (“EEAC” or the

“Council”) is a nationwide association of employers organ-

ized in 1976 to promote sound approaches to the elimination

of employment discrimination. Its membership includes

over 340 of the nation’s largest private sector corporations,

collectively employing over 20 million people throughout the

United States. EEAC’s directors and officers include many

of industry’s leading experts in the field of equal employment

opportunity. Their combined experience gives the Council a

unique depth of understanding of the practical, as well as

legal, considerations relevant to the proper interpretation and

application of equal employment policies and requirements.

EEAC’s members are firmly committed to the principles of

nondiscrimination and equal employment opportunity.

The Chamber of Commerce of the United States (“the

Chamber”) is the world’s largest business federation, repre-

senting an underlying membership of nearly three million

businesses and organizations of every size and in every

industry sector and geographical region of the country. A

principal function of the Chamber is to represent the interests

of its members by filing amicus briefs in cases involving

issues of vital concern to the nation’s business community.

All of EEAC’s and many of the Chamber’s members are

employers subject to Title VII of the Civil Rights Act of 1964

(Title VII), 42 U.S.C. § 2000e et seq., and other equal em-

ployment statutes and regulations. As employers, and as

potential defendants to claims asserted under these laws,

members of EEAC and the Chamber have a substantial

interest in the issue presented in this case, i.e., whether there

must be direct evidence of discrimination in Title VII cases to

warrant the “mixed-motives” analysis this Court established

in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

EEAC and the Chamber seek to assist this Court by

highlighting the impact its decision may have beyond the

3

immediate concerns of the parties to the case. Accordingly,

this brief brings to the attention of this Court relevant matters

that the parties have not raised. Because of their experience

in these matters, EEAC and the Chamber are well situated to

brief this Court on the concerns of the business community

and the significance of this case to employers.

STATEMENT OF THE CASE

Respondent Catharina F. Costa worked in a warehouse for

Desert Palace, Inc., dba Caesars Palace Hotel & Casino

(“Caesars”). Costa v. Desert Palace, Inc., 299 F.3d 828, 844

(9th Cir. 2002). During her employment, Costa was disci-

plined several times for engaging in inappropriate conduct

and using profanity at work. /d. at 844-45. She was ter-

minated by Caesars in 1994 for a physical altercation she had

with a co-worker. /d. at 846.

Costa sued Caesars, alleging among other things that her

sex was a motivating factor in her termination in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seg. At trial, the U.S. District Court for the

District of Nevada gave the jury a “mixed-motives” instruc-

tion as follows:

You have heard evidence that the defendant’s treatment

of plaintiff was motivated by the plaintiff's sex and also

by other lawful reasons. If you find that the plaintiff's

sex was a motivating factor in the defendant’s treatment

of plaintiff, the plaintiff is entitled to your verdict, even

if you find that the defendant’s conduct was also

motivated by a lawful reason.

However, if 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

4

that the defendant would have treated plaintiff similarly

even if the plaintiff's gender had played no role in the

employment decision.

Id. at 858. The jury returned a verdict in favor of Costa and

awarded her back pay and damages. /d. at 846.

On appeal, the U.S. Court of Appeals for the Ninth Circuit

vacated the judgment based on this Court’s plurality opinion

in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and

Justice O’Connor’s concurrence. The appeals court held that

the district court had erred by giving the jury the mixed-

motives instruction without “direct and substantial evidence

of discriminatory animus,” and that the error was not

harmless. Costa v. Desert Palace, Inc., 268 F.3d 882, 889

(9th Cir.), vacated, 274 F.3d 1306 (9th Cir. 2001).

On en banc rehearing, the Ninth Circuit overruled the panel

in a 7-4 decision, holding that the district court’s mixed-

motives jury instruction was proper. 299 F.3d at 859. The en

banc majority held that the 1991 Civil Rights Act overruled

Price Waterhouse entirely, thereby allowing a Title VII plain-

tiff to use either direct or circumstantial evidence to show that

a protected characteristic played “a motivating factor” in an

adverse employment action. The dissenting judges observed

that the majority holding “puts our circuit in conflict with

almost all others.” Jd. at 866. (Gould, Kozinski, Fernandez

& Kleinfeld, JJ., dissenting).

This Court granted certiorari to address the conflict

between the Ninth Circuit’s decision and those of the other

circuit courts of appeals over what type of evidence Title Vil

plaintiffs must show in order for a district court to treat their

case as one involving mixed-motives under Price Waterhouse

v. Hopkins.

SUMMARY OF ARGUMENT

A mixed-motives analysis is appropriate only when the

plaintiff has presented direct evidence of discrimination, i.e.

that a decisionmaker either referred openly to a protected

5

characteristic to explain a challenged employment decision or

relied on a facially discriminatory policy. This standard is

based on the Court’s decision in Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989). Since no opinion garnered the

support of a majority of Justices in Price Waterhouse, Justice

O’Connor’s concurring opinion states this Court’s holding.

Marks v. United States, 430 U.S. 188, 193 (1977). Therefore,

Price Waterhouse requires direct evidence that a protected

characteristic played a substantial role in an employment

action for a mixed-motives analysis to apply. Neither the

plain language of the 1991 Civil Rights Act (CRA), P.L. 102-

166, nor its legislative history indicates that Congress

intended to alter this standard.

This Court should limit mixed-motives analysis only to

situations where a decisionmaker openly referred to a pro-

tected characteristic to explain a challenged employment

decision or relied on a facially discriminatory policy. Justice

O’Connor’s characterization of the plaintiff's proof in Price

Waterhouse as direct evidence and this Court’s prior narrow

interpretation of direct evidence both support this standard.

In Price Waterhouse, the plaintiff was told essentially that she

did not make partner because she did not conform to gender

stereotypes. Likewise, in Mount Healthy City School District

v. Doyle, 429 U.S. 274 (1977), a precursor to Price Water-

house, a school superintendent said he would not rehire the

plaintiff because the plaintiff had talked to a radio station

about a controversial school policy. In both cases, the

decisionmaker’s open reference to a protected characteristic

or activity to explain the adverse action was direct evidence

of discrimination. By allowing respondent to use a mixed-

motives analysis without direct evidence of discrimination,

the Ninth Circuit erred and must be reversed.

Allowing the Ninth Circuit’s decision to stand would prej-

udice employers severely by adding significant hurdles for

them to overcome when defending against employment dis-

6

crimination claims. The decision below would turn every

discrimination claim into a mixed-motives case, shifting the

burden to the employer in every instance to prove its employ-

ment action was based on legitimate criteria. Employers

would have to prove their innocence, even if the plaintiff

presented only circumstantial evidence of discrimination.

The Ninth Circuit’s ruling thus overrides the proof scheme

this Court developed in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), for use when there is no direct evidence

of discrimination. At the same time, mixed-motives treat-

ment significantly undermines the ability of employers to

defend against discrimination claims.

7

ARGUMENT

A MIXED-MOTIVES ANALYSIS IS APPRO-

PRIATE ONLY WHEN THERE IS_ EVIDENCE

THAT A DECISIONMAKER OPENLY REFERRED

TO A PROTECTED CHARACTERISTIC TO

EXPLAIN A CHALLENGED EMPLOYMENT

DECISION OR RELIED ON A _ FACIALLY

DISCRIMINATORY POLICY :

I. THIS COURT’S HOLDING IN PRICE WATER-

HOUSE, A STANDARD THE 1991 CIVIL

RIGHTS ACT DID NOT ALTER, AND PRIOR

NARROW INTERPRETATION OF DIRECT

EVIDENCE SUPPORT LIMITING MIXED-

MOTIVES ANALYSIS ONLY TO SITUATIONS

WHERE A_ DECISIONMAKER OPENLY

REFERRED TO A PROTECTED CHARAC-

TERISTIC TO EXPLAIN A CHALLENGED

EMPLOYMENT DECISION OR RELIED ON A

FACIALLY DISCRIMINATORY POLICY

A. Justice O’Connor’s Concurring Opinion in

Price Waterhouse v. Hopkins Requiring Direct

Evidence That a Protected Characteristic

Played a Substantial Role in an Employment

Action for a Mixed-Motives Analysis States

This Court’s Holding

Title VII of the Civil Rights Act of 1964 prohibits an

employer from discriminating against an employee or

applicant “because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a). Recog-

nizing that “[t]here will seldom be ‘eyewitness’ testimony as

to the employer’s mental processes,” U.S. Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 716 (1983), so that direct

evidence is often unavailable, this Court has developed “a

sensible, orderly way to evaiuate the evidence in light of

8

common experience as it bears on the critical question of

discrimination.” Furnco Constr. Corp. v. Waters, 438 U.S.

567, 577 (1978).

This Court established the now-familiar method of proof to

establish intentional discrimination using circumstantial

evidence in McDonnell Douglas Corp. v. Green, 4il USS.

792 (1973). To establish a prima facie case of discrimination,

a plaintiff must show (1) he was a member of a protected

class; (2) he applied for and was qualified for a job for which

the employer was seeking applications; (3) despite his

qualifications, he was rejected; and (4) after his Tejection, the

position remained open, and the employer continued to seek

applicants with his qualifications. Id. at 802 (footnote

omitted). The burden to establish a prima facie case is not

onerous, yet it “creates a presumption that the employer

unlawfully discriminated against the employee.” Texas Dept.

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981).

If the plaintiff establishes a prima facie case, the burden

shifts to the employer to articulate a legitimate, nondis-

criminatory reason for the employment decision. McDonnell

Douglas, 411 U.S. at 802. If the employer succeeds, the

presumption of discrimination drops from the case. Burdine,

450 U.S. at 255 n.10. At this point, the burden shifts back to

the plaintiff to show the proffered reason was merely a

pretext for discrimination. St. Mary's Honor Ctr. v. Hicks,

509 U.S. 502, 508 (1993). If the plaintiff cannot make this

showing, he has failed to establish a violation of Title VII.

McDonnell Douglas, 411 U.S. at 807.

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), this

Court established another way of proving intentional dis-

crimination where an adverse employment decision is based

on a mixture of both legitimate and illegitimate motives. In

that case, the plaintiff showed that her employer, an

accounting firm, did not make her a partner based at least in

part on its perception that she did not conform to the

9

stereotype of how a woman should act. In particular, the

plaintiff was told she should “‘walk more femininely, talk

more femininely, dress more femininely, wear make-up, have

her hair styled, and wear jewelry’” to improve her chances for

partnership. Jd. at 235 (citation omitted). Her employer

argued that the plaintiff was passed over because of problems

with her interpersonal skills. Jd. at 236.

A plurality of four Justices ruled that where a plaintiff

proves that gender played “a motivating part” in an employ-

ment decision, along with legitimate factors, the plaintiff has

shown that the decision was “because of” her sex in violation

of Title VII. /d. at 250. The employer still can avoid lia-

bility, but only if it proves that it would have made the same

decision without considering the protected characteristic. /d

This method of proof is known as a “mixed-motives”

analysis. /d. at 246.

The plurality distinguished between mixed-motives cases

and pretext cases, which are analyzed under the McDonnell

Douglas paradigm. According to the plurality, the pretext

analysis presupposes that either a legitimate or illegitimate

reason caused an adverse employment decision by asking

whether the defendant’s reason is the “true” one. /d. at 247.

Under the McDonnell Douglas test, the plaintiff retains at all

times the burden of persuading the fact finder that intentional

discrimination occurred. Burdine, 250 U.S. at 253. In con-

trast, the mixed-motives analysis recognizes the compara-

tively rare situation in which there actually is eyewitness

evidence of discrimination, yet the employer contends that it

would have taken the same employment action in any event.

Price Waterhouse, 490 U.S. at 247. Once the plaintiff

persuades the trier of fact that an illegitimate factor actually

was considered, the burden of persuasion shifts to the

employer to prove that it would have reached the same

decision based solely on legitimate factors. Jd. at 246. The

plurality characterized the employer’s burden at this stage as

10

“an affirmative defense.” /d. The plurality expressly

declined to identify, however, “which specific facts, ‘standing

alone’ would or would not establish a plaintiff's case,”

explaining that to do so was “unnecessary in this case.” /d.

at 252.

Justices White and O’Connor each wrote a separate

opinion concurring in the judgment without joining the

plurality opinion. Justice White disagreed with the pluraiity’s

requirement that the employer must provide objective

evidence that it would have reached the same result absent the

discriminatory factor. In his view, employers should Not be

restricted to objective evidence to make this showing. /d. at

261 (White, J., concurring).

Justice O’Connor wrote separately to explain her view on

“when and how the strong medicine of requiring the

employer to bear the burden of persuasion on the issue of

causation should be administered.” /d. at 262 (O'Connor, J.,

concurring). In Justice O’Connor’s view, only “direct evi-

dence that an illegitimate criterion was a substantial factor in

the decision” would justify shifting the burden of proof to the

defendant under a mixed-motives analysis. The defendant

then must prove that it would have reached the same decision

based on wholly legitimate reasons, without considering the

protected characteristic. /d. at 276 (emphasis added). If the

defendant succeeds, then Justice O’Connor agreed wih the

plurality that it had not discriminated “because of” a

protected characteristic.

According to Justice O’Connor, mixed-motives cases

appropriately require the employer to assume the heightened

burden of refuting discrimination. While the prima fade case

under McDonnell Douglas may be indicative of dscrim-

ination, it does not amount to proof of “the evil{}] Congress

sought to eradicate from the employment setting.” Id. at 275.

Therefore, the defendant is entitled to a presumption that it

acted in good faith when confronted with only circumstantial

—_ ——

11

evidence of discrimination, and should not have to prove that

it acted lawfully. See id. at 266. In contrast, direct evidence

of discrimination does not entitle the employer to the same

presumption that it acted in good faith. Instead, the employer

must justify its decision on legitimate criteria. /d. at 271.

Without an opinion supported by a majority of the Justices,

Justice O’Connor’s concurring opinion states the holding of

this Court in Price Waterhouse. In Marks v. United States,

430 U.S. 188, 193 (1977), this Court instructed that when

there is no clear majority opinion, “the holding of the court

may be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds.”

(citation omitted). In Price Waterhouse, neither the plurality

opinion nor Justice White addressed what type of evidence

would be sufficient to shift the burden of persuasion to the

employer to prove that it would have reached the same

decision absent consideration of the discriminatory factor.

Justice O’Connor’s concurrence requiring direct evidence as

a prerequisite for the shift thus is the narrowest ground on

which a majority of the Justices agreed. Therefore, her

concurring opinion states the holding of this Court.

In addition, Justice Kennedy’s dissent, which the Chief

Justice and Justice Scalia joined, specifically uses Justice

O’Connor’s words to describe the Court’s holding. “The shift

in the burden of persuasion occurs only where a plaintiff

proves by direct evidence that an unlawful motive was a

substantial factor actually relied upon in making the decision.

Ante, at 1804-1805 (opinion of O'CONNOR, J.).” 490 U.S.

at 280 (Kennedy, J., dissenting).

12

B. This Court Should Limit Mixed-Motives

Analysis Only to Situations Where There Is

Evidence a Decisionmaker Openly Referred to

a Protected Characteristic To Explain a

Challenged Employment Decision or Relied on

a Facially Discriminatory Policy

1. Justice O’Connor used a narrow inter-

pretation of direct evidence in Price

Waterhouse

Justice O’Connor did not explicitly define in Price

Waterhouse what type of proof would constitute “direct

evidence that an illegitimate criterion was a substantial factor

in the decision,” 490 U.S. at 276 (O’Connor, J., concurring),

so as to shift the burden of proof to the defendant to justify its

decision on legitimate grounds. Nevertheless, her conclusion

that the plaintiff in Price Waterhouse had satisfied this evi-

dentiary threshold shows that evidence that a decisionmaker

explicitly referred to a protected characteristic to explain a

challenged employment action will suffice for this purpose.

In Price Waterhouse, the plaintiff produced evidence that

several evaluators cited her failure to conform to certain

gender stereotypes as a reason why she should not become a

partner, that the decisionmakers gave these evaluations “great

weight,” and that the partner who explained to the plaintiff

why she did not make partner told her she could increase her

chances of partnership if she were to “*walk more femininely,

talk more femininely, dress more femininely, wear make-up,

have her hair styled, and wear jewelry.” /d. at 272 (citation

omitted). To Justice O'Connor, this evidence conveyed that

the rejection was because of the plaintiff's gender just as

clearly as if “she was told by one of those privy to the

decisionmaking process that her gender was a major reason

for the rejection of her partnership bid.” /d. at 273. The overt

“advice” that the plaintiff should act more like a woman to

improve her partnership prospects thus directly connected her

13

gender to the adverse employment action, warranting the

“strong medicine of requiring the employer to bear the burden

of persuasion on the issue of causation ....” Jd. at 262.

In contrast, Justice O’Connor Said that stray remarks in the

workplace, statements made by nondecisionmakers, state-

ments made by decisionmakers that are unrelated to the

challenged employment decision, or evidence of sex stereo-

typing are not sufficient to treat a case as involving mixed-

motives. /d. at 277. Otherwise, every reference to a

protected characteristic would turn into direct evidence of

discrimination. Justice O’Connor recognized the problem

with such a standard:

Race and gender always “play a role” in an employment

decision in the benign sense that these are human char-

acteristics of which decisionmakers are aware and about

which they may comment in a perfectly neutral and non-

discriminatory fashion. For example, in the context of

this case, a mere reference to “a lady candidate” might

show that gender “played a role” in the decision, but by

no means could support a rational factfinder’s inference

that the decision was made “because of sex.”

Id. The Ninth Circuit’s reliance on exactly the type of evi-

dence Justice O’Connor dismissed as insufficient to warrant a

mixed-motives analysis thus requires reversal.

2. The Court’s prior decisions limit direct -

evidence to situations involving direct

consideration of a protected characteristic

Justice O’Connor was not writing on a clean slate when she

described the plaintiff's proof as direct evidence in Price

Waterhouse. The standard she adopted follows logically

from this Court’s decision in Mount Healthy City School

District v. Doyle, 429 U.S. 274 (1977), a mixed-motives case

involving a constitutional violation. In that case, a teacher,

who was not rehired after he alerted a local radio station to a

ee

14

controversial school policy, sued the school district for

violating his right to free speech under the First Amendment.

The Court found that a letter from the school superintendent

to the plaintiff explaining that he would not be rehired

because he had spoken to a local radio station was direct

evidence that his protected speech was a “motivating factor”

in the adverse decision. /d. at 282-83. This evidence was

sufficient to shift the burden to the school district to prove by

a preponderance of the evidence that it would not have

rehired the teacher even absent the protected conduct. /d. at

287. The Court’s decision in Mount Healthy thus supports

Justice O’Connor’s conclusion that a decisionmaker’s open

reference to a protected factor to explain an employment

decision was direct evidence in Price Waterhouse.

Justice.O’Connor’s standard for direct evidence in Price

Waterhouse also is consistent with this Court’s decision in

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985),

which she cited as an example of direct evidence. 490 U.S. at

271-72 (O’Connor, J., concurring). In Trans World Airlines,

the Court held that a company transfer policy that limited a

disqualified captain’s transfer options based on his age was

discriminatory on its face. 469 U.S. at 121. The direct evi-

dence of age discrimination in the company policy thus

rendered the McDonnell Douglas test inapplicable, the Court

said. /d.

Mount Healthy and Trans World Airlines thus indicate that

an admission by a decisionmaker that he rejected the plaintiff

because she was a woman would constitute direct evidence to

warrant mixed-motives treatment. Likewise, evidence that a

decisionmaker said a female candidate would have stood a

better chance at obtaining the job if she were a man, or relied

on a facially discriminatory policy that limits hiring to only

men, also probably would be enough to shift the burden of

persuasion to the employer to show that it did not dis-

criminate. Respondent's failure to produce any comparable

15

direct evidence of discrimination in the instant case thus

warrants reversal of the Ninth Circuit’s decision to treat her

case as involving mixed-motives.

3. The decision below would make _ the

McDonnell Dougias line of cases superfluous

This Court has developed different proof schemes to

distinguish between discrimination claims based on direct

evidence of unlawful bias versus those resting solely on

circumstantial evidence. Price Waterhouse, 490 U.S. at 246-

47. “(T]he entire purpose of the McDonnell Douglas prima

facie case is to compensate for the fact that direct evidence of

intentional discrimination is hard to come by.” 490 U.S. at

271 (O’Connor, J., concurring). The McDonnell Douglas test

does not even apply when a plaintiff has direct evidence of

discrimination. /nternational Bhd. of Teamsters v. United

States, 431 U.S. 324, 358 n.44 (1977). Turing every dis-

crimination claim into a mixed-motives case would eliminate

this careful distinction and unfairly require employers to

prove they acted lawfully in all cases.

The Third Circuit cautioned against this outcome:

Such a result would merge the two different theories,

mixed-motives and pretext, into one cause of action.

Every pretext case would then require a mixed-motives

instruction and that instruction would shift to the

employer the production and persuasion burdens of

negating any causal connection between the employer's

actions and illegal discrimination instead of requiring the

employee to show pretext and to persuade the factfinder

that illegal discrimination was the legal cause of action

against her . . . the Supreme Court has taken great pains

to differentiate between the two theories.

Hook v. Ernst & Young, 28 F.3d 366, 374-75 (3d Cir. 1994)

(citation omitted). Likewise, the First Circuit warned that

“this mixed-motive approach, uncabined, has the potential to

16

swallow whole the traditional McDonnell Douglas analysis.”

Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580

(ist Cir. 1999).

C. The 1991 Civil Rights Act Left Intact This

Court’s Holding in Price Waterhouse That

Direct Evidence Is Necessary for a Mixed-

Motives Analysis

1. The Civil Rights Act does not refer to the

type or quantity of evidence necessary to

shift the burden of persuasion to the

defendant in a mixed-motives case

Section 107 of the Civil Rights Act of 1991 (“CRA”), P.L.

102-166, superseded only selected parts of this Court’s

holding in Price Waterhouse that an employer was not liable

for discrimination at all if it could show that it would have

reached the same decision without considering a protected

characteristic. 490 U.S. at 258. Section 107(a) states: “an

unlawful employment practice is established when the

complaining party demonstrates that race, color, religion, sex,

or national origin was a motivating factor for any employ-

ment practice, even though other factors also motivated the

practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). Sec-

tion 107(b) makes an employer liable for declaratory and

injunctive relief, and attorney’s fees and costs, but not

damages or reinstatement if it can show that it would have

taken the same action despite the impermissible motivating

factor. 42 U.S.C. § 2000e-5(g)(2)(B).

It is well-settled that, when construing statutory provisions,

courts must look first to the plain meaning of the statutory

language. See, e.g., American Tobacco Co. v. Patterson, 456

U.S. 63, 68 (1982). For, as this Court has stated repeatedly,

the “courts must presume that a legislature says in a statute

what it means and means in a statute what it says there.”

Connecticut Nat'l. Bank v. Germain, 503 U.S. 249, 253-54

17

(1992). Unless a statute’s wording is unclear, a court should

not even pause to consider arguments for a different inter-

pretation based on legislative history or purpose. “When the

words of a statute are unambiguous, then, this first canon is

also the last: ‘judicial inquiry is complete.’”” /d. (quoting

Rubin v. United States, 449 U.S. 424, 430 (1981)).

The CRA did not displace Price Waterhouse’s common

iaw requirement for direct evidence to warrant a mixed-

motives analysis. Section 107 is completely silent as to what

type of evidence is necessary to shift the burden of persuasion

from the plaintiff to the defendant in a mixed-motives case.

A narrow interpretation of the scope of the CRA’s changes is

thus warranted, because “[n]jo statute is to be construed as

altering the common law, further than its words import. It is

not to be construed as making any innovation upon the

common law which it does not fairly express.” Shaw v.

Merchants’ Nat'l Bank, 101 U.S. 557, 565 (1879). The Ninth

Circuit thus erred by interpreting section 107 more broadly

to overrule this Court’s entire holding in Price Waterhouse

than the plain language of the statute justifies, and must

be reversed.

In addition, several federal circuit courts also have agreed

that section 107 of the CRA replaced only that portion of the

Price Waterhouse decision that an employer was not liable

for discrimination at all if it could show it would have taken

the same action without considering the discriminatory

motive. See, e.g., Watson v. Southeastern Pa. Transp. Auth.,

207 F.3d 207, 216 (3d Cir. 2000); Medlock v. Ortho Biotech,

Inc., 164 F.3d 545, 552 (10th Cir. 1999); Fields v. New York

State Office of Mental Retardation and Developmental

Disabilities, 115 F.3d 116, 124 (2d Cir. 1997).

Therefore, the Court’s holding in Price Waterhouse re-

quiring direct evidence for mixed-motives treatment remains

good law after the CRA and warrants reversal of the Ninth

Circuit’s contrary holding.

18

2. The Civil Rights Act’s legislative history

shows Congress did not intend to supersede

the requirement for direct evidence to

proceed under a mixed-motives analysis

Should the Court delve beyond the plain language of

section 107, the CRA’s legislative history also indicates that

Congress did not intend to supersede the entire ruling in Price

Waterhouse. Instead, Congress targeted for change only the

Court’s conclusion that an employer would not be liable for

discrimination at all, if it could show it would have reached

the same decision without considering the impermissible

factor. A section-by-section analysis of the legislation by

Senator Dole described the CRA’s change to Title VII as

“allow[ing] the employer to be held liable if discrimination

was a motivating factor in causing the harm suffered by the

complainant . . . [but if] it would have taken the same

employment action absent consideration of race, sex, color,

religion, or national origin, the complainant is not entitled

to reinstatement, backpay or damages.” 137 Cong. Rec.

$15,476 (daily ed. Oct. 30, 1991).

In addition, the report from the House Committee on

Education and Labor on the 1990 version of the CRA

supports a limited scope of the final CRA. The 1990 version

contained virtually the same language regarding mixed-

motives cases as the 1991 law. The House report focused

solely on the need to replace the part of Price Waterhouse

holding that employers could avoid liability entirely if they

could show that they would have reached the same decision

without considering the impermissible factor. H.R. Rep.

2 President George Bush issued a statement upon signing the CRA

instructing that Senator Dole’s analysis would be treated as “authoritative

interpretive guidance” on the meaning of the statute. Statement By The

President (Nov. 21, 1991), reprinted in Employment Policy Found., The

Civil Rights Act of 1991 Legislative History, vol. 11-1991 (1992), at

223-34.

19

No. 102-40, pt. 1, at 45-48 (1991). In fact, the committee

specifically clarified that the proposed legislation did not

affect two other holdings in Price Waterhouse regarding the

use of sex stereotyping to prove gender discrimination and

the preponderance of the evidence standard for employers.

Id. at 45. Thus, the CRA’s legislative history shows that the

statute did not alter Price Waterhouse’s requirement that a

plaintiff must show direct evidence to proceed under a mixed-

motives analysis.

Il. ALLOWING THE NINTH CIRCUIT’S DECI-

SION TO STAND WOULD SEVERELY COM-

PROMISE AN EMPLOYER’S ABILITY TO

DEFEND AGAINST DISCRIMINATION

CLAIMS

A. The Decision Below Would Turn Every

Discrimination Claim Into a Mixed-Motives

Case, Shifting the Burden of Proof to the

Employer Every Time

The Ninth Circuit’s decision gives plaintiffs Lue ability to

turn even garden variety discrimination claims into mixed-

motives cases, shifting the burden of proof to the employer

every time. Even plaintiffs with only circumstantial evi-

dence of discrimination will be able to bypass entirely the

McDonnell Douglas test in favor of the higher burden a

mixed-motives analysis places on employers. The absence of

eyewitness evidence of discrimination, which led this Court

to develop an alternative proof scheme in McDonnell

Douglas, no longer will determine the employer’s burden of

proof. Instead, the decision below significantly ratchets up

the employer’s burden of proof in every case to prove lawful

activity. The Ninth Circuit’s ruling thus gives plaintiffs not

only a second “bite at the apple” to convince the trier of fact

that intentional discrimination occurred, it allows the

plaintiffs to swallow the apple whole.

20

Enabling plaintiffs unilaterally to transform every pretext

case to a mixed-motives one significantly burdens employers

by complicating their defense immeasurably. A mixed-

motives instruction, as Justice O’Connor recognized, 490

US. at 262 (O’Connor, J., concurring), takes the drastic step

of shifting the burden to employers to prove affirmatively that

they would have acted the same way in any event, not just

articulate a legitimate, nondiscriminatory reason for their

action under the McDonnell Douglas standard. Not sur-

prisingly, a Justice Department study revealed that plaintiffs

had won almost 80 percent of the mixed-motives cases after

the Price Waterhouse decision. See H.R. Rep. No. 102-40,

pt. 1, at 157-58 (1991) (minority views). Therefore, main-

taining “the distinction [between mixed motives and pretext

cases] is critical, because plaintiffs enjoy more favorable

standards of liability in mixed-motives cases .. . ” Fuller v.

Phipps, 67 F.3d 1137, 1141 (4th Cir. 1995).

The prospect of turning every employment discrimination

claim into a mixed-motives case is especially problematic

because employment decisions often provide fertile grounds

for discrimination claims. Employment decisions frequently

rely on subjective criteria, which may encourage a plaintiff to

claim that a protected characteristic was 4 motivating factor,

as opposed to the motivation. As one commentator observed:

{e]mployment decisions . . . are almost always mixed-

motive decisions turning on many factors. While

or applicant to find someone whose input into the

21

tributing motivation may assure the employer’s mini-

mum liability. Summary judgment will be less frequent

because the plaintiff's threshold burden is so light.

David A. Cathcart & Mark Snyderman, The Civil Rights Act

of 1991, SF41 ALI-ABA Course of Study 391, 432 (Mar. 1,

2001) (emphasis omitted). By improperly shifting the burden

of proof to the employer in virtually every discrimination

case, the Ninth Circuit’s decision inflates significantly

the plaintiff's chances of winning even a weak discrimina-

tion claim.

Reserving mixed-motives treatment for cases with direct

evidence of discrimination will encourage employers to be

vigilant in preventing harm, a primary goal of Title VII. This

standard will prompt employers to develop early warning

programs to monitor the workplace for discrimination to

avoid situations involving direct evidence, which would

trigger the higher burden. See Faragher v. City of Boca

Raton, 524 U.S. 775, 806 (1999). Otherwise, forcing em-

ployers to prove that they acted lawfully, regardless of

whether the plaintiff has direct or only circumstantial evi-

dence of discrimination, provides less incentive for employers

to make sure decisions are not inappropriately based on

protected factors. If employers will face this higher burden

no matter how hard they try to make sure decisionmakers act

lawfully, or how well they succeed, then they will have less

incentive to develop procedures to scrutinize employment

decisions carefully.

In addition, the Ninth Circuit’s relaxed standard for mixed-

motives cases would encourage frivolous claims, which also

frustrate Title VII’s goal of avoiding harm. Frivolous

mixed-motives claims divert employers’ attention and

resources away from developing proactive approaches against

discrimination:

[S]ince a large portion of . . . employment discrimination

claims may not be legitimate, there is a countervailing

22

need to have a somewhat stricter evidentiary require-

ment in employment discrimination cases in order to

prevent excessive or frivolous claims, particularly since

jurors typically side with the employee in such cases,

rather than the “Goliath” employer.

A continued deluge of claims would force employers to

take extreme measures to protect themselves against

frivolous litigation and expend valuable energy and

resources to guard against potential claims of discrim-

ination . . . Excessive discrimination claims bind em-

ployers by forcing them to divert their resources, thereby

reducing their efficiency.

Joseph J. Ward, A Call for Price Waterhouse II: The Legacy

of Justice O'Connor's Direct Evidence Requirement for

Mixed-Motive Employment Discrimination Claims, 61 Alb. L.

Rev. 627, 659 (1997) (footnote omitted).

To guard against this waste, this Court properly restricted

mixed-motives analysis to the rare case in which a plaintiff

can demonstrate with a high degree of assurance that the

challenged employment decision was at least in part the result

of illegitimate motives. Price Waterhouse, 490 U.S. at 247.

This standard should ensure. that “plaintiffs in employment

discrimination cases use anti-discrimination laws only as a

shield against overly illegal employer conduct, and not as a

sword to threaten employers into wasteful prophylactic

actions.” Ward, supra, at 663 (footnote omitted). Because

circumstantial evidence does not satisfy this narrowly drawn

standard, the Ninth Circuit’s ruling below must be reversed.

B. The Decision Below Significantly Undermines

an Employer’s Defense to a Discrimination

Claim

The Ninth Circuit’s decision also severely prejudices

employers by significantly undermining their ability to

defend against discrimination claims. Forcing employers

simultaneously to defend against both claims of pretext and

23

mixed-motives will require them to argue alternative theories

in almost every case. First, they must contend that they did

not discriminate and in fact based their actions on legitimate,

nondiscriminatory reasons. At the same time, employers will

have to argue the patently defensive alternative that even if

they did discriminate, they would have made the same

decision anyway.

This apparent inconsistency is likely to hurt the employer’s

credibility with the jury:

The primary danger is that it suggests a lack of

confidence in one’s own case and perhaps even a degree

of desperation. The advancement of multiple theories in

a case is the equivalent of throwing in “everything but

the kitchen sink” in the hope that something will prove

persuasive . . . Jurors will likely ask themselves why

they should believe a particular theory when the attorney

presenting that theory does not even seem to believe it.

Multiple-choice theories are likely to elicit just such a

response: “If the attorney feels so passionate about the

primary theory, why does he give me another option?”

In other words . . . the jury will likely perceive this

approach as game playing or even worse, manipulative

and dishonest.

H. Mitchell Caldwell, et al., The Art and Architecture of

Closing Argument, 76 Tul. L. Rev. 961, 993 (Mar. 2002).

A mixed-motives instruction also prejudices employers by

giving juries the option of reaching a compromise verdict in

favor of a sympathetic plaintiff. “(Juries are notorious for

wanting to ‘split the baby.’” /d. at 996. (footnote omitted). A

jury that is sympathetic to the plaintiff may use mixed-

motives treatment as a way to find for the plaintiff without

awarding damages, even though the employer can prove a

legitimate reason for its decision. The attraction of a

compromise verdict thus reduces an employer’s chances of

successfully defending against discrimination claims. By

24

turning most discrimination claims into mixed-motive; cases,

the decision below forces defendant-employers to an

untenable position, and must be reversed.

CONCLUSION

For the foregoing reasons, the decision of the @urt of

appeals below should be reversed.

STEPHEN A. BOKAT

ELLEN D. BRYANT

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Attorneys for Amicus Curiae

The Chamber of Commerce

of the United States

February 28, 2003

Respectfully submitted,

ANN ELIZABETH REESMAN

KATHERINE Y.K. CHEUNG

Counsel of Record

McCGUINESS NORRIS &

WILLIAMS, LLP

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curice

Equal Employment Advisor, Council