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

— Neen ee ae

In the Supreme Court of the Cited States

BRIEF FOR THE UNITED STATES

AS AMICUS CURLAE SUPPORTING PETITIONER

QUESTION PRESENTED

Whether a plaintiff in a Title VII case must adduce direct

evidence of discriminatory intent to trigger application of

the mixed-motive analysis under Price Waterhouse v. Hop

kins, 490 U.S. 228 (1989).

TABLE OF CONTENTS

Interest of the United States .........ccccccccccccsssseceseeceneenesneneeneenevens

ee

SEnIUEITE UETUIIIIIIIIIINTID scnschisiinennecnstuttenditisidnenssnisibesiinetuiaiiinaiemianeniens

Argument:

Plaintiffs in Title VII mixed-motive cases must

adduce direct evidence of discriminatory intent to

invoke the mixed-motive analysis under Price

Ny Oy BID ceciccvsenetciisncssnesitesinenesnantianiassnnnntats

A. Under Price Waterhouse v. Hopkins, plaintiffs

in mixed-motive cases must initially present

direct evidence of discriminatory intent ................

B. The Civil Rights Act of 1991 did not alter the

plaintiffs burden to adduce direct evidence of

discrimination in mixed-motive cases ..........c0000

1. The text of the 1991 amendments demonstrates

that Congress did not alter Price Waterhouse’s

direct evidence requirement ...............c0s0en

2. The legislative history of the 1991 amendments

confirms that Congress did not alter Price

‘aterhouse’s direct evidence requirement ..........

3. The Ninth Circuit's approach would frustrate

much of this Court's Title VII jurisprudence ......

C. “Direct evidence” of discrimination must directly

reflect the alleged discriminatory intent and be

directly related to the challenged employment

RIED censerinssentnisssttienniesiencerersnsnnicinninisieninsninintsaentammarsssamiamasaas

2 I eS

(IIT)

11

l4

17

19

S&

IV

TABLE OF AUTHORITIES

Cases:

Bellaver v. Quanex Corp., 200 F.3d 485 (7th Cir.

I

CFTC v. Schor, 478 U.S. 833 (1986) .......cccccseeenenennnnenneees

Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir.

I

OO

De la Cruz v. New York City Human Res. Admin.

Dep't of Soc. Servs., 82 F.3d 16 (2d Cir.), mot. denied,

0 | 7) | eS

EEOC vy. Alton Packaging Corp., 901 F.2d 920

Ce 2 oe

FDIC vy. Philadelphia Gear Corp., 476 U.S. 426

NN

Fakete v. Aetna, Inc., 308 F.3d 335 (3d Cir. 2002) .......

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

STB (lat Cir. 19GB) .......cecceccsseecesenseccesersnesecsssssscnsennenesensesoees

Ferrill v. Parker Group, Inc., 168 F.3d 468 (11th Cir.

CO ————————————————

Fields v. New York State Office of Mental Retarda-

tion & Developmental Disabilties, 115 F.3d 116

OS 5,

Fuller v. Phillips;>67 F.3d 1137 (4th Cir. 1995) ...... 22, 24, 25

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

Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309

(6th Cir. 1989), overruled on other grounds, Kline

v. Tennessee Valley Auth., 128 F.3d 337 (6th Cir.

, a

(O—_—————————— -

Heim v. Utah, 8 F.3d 1541 (10th Cir. 1993)

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

Jackson v. Harvard Univ., 900 F 2d 464 (1st Cir.),

cert. denied, 498 U.S. 848 (1990)

21

RSS

24-

21, 26

V

Cases—Continued: Page

Kolstad v. American Dental Ass'n, 527 U.S. 526

SS 7-8

Laderach v. U-Haul, 207 F.3d 825 (6th Cir. 2000) .......... 16

Marks v. United States, 430 U.S. 188 (1977) .................... 9,15

McDonnell Douglas Corp. v. Green, 411 U.S. 792

SEED cncsceiussitinessienesiecssiticeennnamnannhennmasneeanpieniiimamminmeats 2,3, 12

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

(10th Cir.), cert. denied, 528 U.S. 813 (1999)... 17, 28

Mohr v Dustrol, Inc., 306 F 3d 636 (8th Cir. 2002) ..... 16, 27

Mooney v. Aramco Servs. Co., 54 F.3d 1207

Ge SED seitttertcrtensstrnnesiomnennienememens 16

Nitschke v. McDonnell Douglas Corp., 68 F 3d 249

PI, TUTTI ono cernsnnstinatenieesiniatdetsiemenicineniaiiinenaens 26, 27

Oates v. Discovery Zone, 116 F.3d 1161 (7th Cir.

a 16, 25

Ostrowski v. Atlantic Mut. Ins. Co., 968 F.2d 171

Co 25, 28

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

[EID cxssatnesnssentetemnensneinmenmmmnesneneenenetansnstenenenmmens passim

Reeves v. Sanderson Plumbing Prods., Inc., 530 US

ee 3

Rollins v. Tech-South, Inc., 833 F.2d 1525 (11th Cir.

ee 25-26

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) ....... ~

Shorter v. ICG Holdings, Inc., 188 F.3d 1204 (10th

Gi, BED ccnneneeremmmannememmnmgees 26

Simmons v. Oce-USA, Inc., 174 F.3d 913 (8th Cir.

ES Ae TR SIE ae ie eee 25, 26

Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089

Se 27

Texas Dep't of Cmty. Affairs v. Burdine, 450 US.

248 (1981) —

Thomas v. NFL Players Ass’n., 131 F.3d 198 (D.C. Cir.

1997) 17, 24, 28

Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d

1472 (10th Cir. 1996) 16, 27

VI

Cases—Continued: Page

Troupe v. May Dep't Stores Co., 20 F.3d 734 (7th Cir.

RR a ia ee SOE EE 26

Tyler v. Bethlehem Steel Corp., 958 F.2d 1176

(2d Cir.), cert. denied, 506 U.S. 826 (1992)... 17

United States v. Wells, 519 U.S. 482 (1997) «2.0... 21-22

Watson v. SEPA, 207 F.3d 207 (3d Cir. 2000), cert.

denied, 531 U.S. L147 (2001) .......ecceeeeneeernnnnenens 17, 19, 20, 22

Weston-Smith v. Cooley Dickinson Hosp., Inc.,

282 F.3d GO (Ast Cir. 2002) ........ccccccceecnseseceneenenannnnnenes 17, 25, 27

Statutes:

Age Discrimination in Employment Act of 1967,

BD UBC. GBB C0 GOD, oneecccrerccensrsncscsserscscsvcorcononeceanssnemneseceesenees 3

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 20006¢ et seq.:

PR tee 2, 3, 19, 20

Ce 1

42 U.S.C. DODD O-GUI MA) 2.nncacecececnsncsesesvensessersrsereneneneesensnsnsesees 1

Civil Rights Act of 1991, Pub. L. No. 102-1606, 105 Stat.

a (17

Oe 9, 10, 22, 23

§ 107(a), 105 Stat. 1075 (42 U.S.C. 2000e2(m) ............ 4, 13,

19, 20

§ 107(b), 105 Stat. 1075 (42 U.S.C. 2000e-5(g)(2)(B) ... 4,

13, 20

Miscellaneous:

Black's Law Dictionary (5th ed. 1979) ..........ceseeeneeeeneneees 26

EEOC Revised Enforcement Guide on Recent Develop-

ments in Disparate Treatment Theory, 8 Lab. Rel.

Rep. (BNA) 405:6915 (July 7, 1992) ........-..--.sssessseessneee 18, 26

H.R. Rep. No. 40, 102d Cong., Ist Sess. (1991):

eee 22,23

Pt. 2 me scmaneeneemapmemanagemenimmnmasinanempmmnnanniats 22

In the Supreme Court of the United States

No. 02-679

DESERT PALACE, INC., DBA

CAESARS PALACE HOTEL & CASINO, PETITIONER

v.

CATHARINA F. COSTA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the appropriate standards for trigger-

ing mixed-motive instructions in cases of intentional dis-

crimination under Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e et seg., which prohibits employment dis-

crimination on the basis of race, color, religion, sex, or na-

tional origin. The United States has a substantial interest in

the resolution of that question. The Attorney General is re-

sponsible for enforcing Title VII against public employers,

42 U.S.C. 2000e-5(f)(1), and the Equal Employment Oppor-

tunity Commission (EEOC) enforces Title VII against pri-

vate employers, 42 U.S.C. 2000e-5. In addition, the United

States, as the Nation’s largest employer, has a strong inter-

est in ensuring the fair and balanced enforcement of Title

VIL. |

(1)

to

STATEMENT

1. Title VII of the Civil Rights Act of 1964 prohibits em-

ployers from “discriminat[ing) against any individual with

respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's gender, race,

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

Recognizing that direct evidence of discrimination often may

not be available to prove intentional] discrimination, this

Court set forth a burden-shifting framework for analyzing

Title VII disparate treatment cases in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). Under the McDon-

nell Douglas framework, once a plaintiff has established a

prima facie case of discrimination, the burden of going for-

ward with evidence shifts to the employer to articulate a le-

gitimate nondiscriminatory reason for the adverse employ-

ment action. /bid. If the employer presents evidence of a

nondiscriminatory reason for its action, the plaintiff may

then show that the employer's proffered explanation is not

the true reason for the employment decision or that a dis-

criminatory reason more likely than not motivated the em-

ployer. Id. at 804; see Texas Dep't of Cmty. Affairs v. Bur-

dine, 450 U.S. 248, 256 (1981). The burden of persuasion re-

mains with the plaintiff at all times. Burdine, 450 U.S. at 253.

For thirty years, courts have used the McDonnell Doug-

las/Burdine pretext standard to resolve most Title VII

cases. It represents a “sensible, orderly way to evaluate the

evidence” in a Title VII disparate-treatment case, giving

both plaintiff and defendant fair opportunities to litigate “in

light of common experience as it bears on the critical ques-

tion of discrimination.” Furnco Constr. Corp. v. Waters, 438

U.S. 567, 577 (1978). It also represents this Court’s defini-

tive construction of “[t)he language of Title VII,” which

“makes plain the purpose of Congress to assure equality of

employment opportunities and to eliminate those discrimina-

-

tory practices and devices which have fostered racially

stratified job environments to the disadvantage of minority

citizens.” 411 U.S. at 800. The McDonnell Douglas frame-

work, moreover, has gained wide acceptance, not only in

cases alleging discrimination on the basis of “race, color, re-

ligion, sex, or national origin” under Section 2000e-2(a) and

the other provisions of Title VII, but also in similar diserimi-

nation cases, such as those alleging age discrimination under

the Age Discrimination in Employment Act of 1967, 29

U.S.C. 621 et seq. See, e.g., Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 141 (2000) (assuming without de-

ciding that McDonnell Douglas framework applied in ADEA

case and collecting court of appeals cases that so hold).

Wherever it governs, the McDonnell Douglas framework at

all times places the burden on the plaintiff to demonstrate

that the adverse employment action was taken “because of”

discriminatory motive.

In 1989, the Court set forth a different test for analyzing

intentional discrimination claims in “mixed-motive” cases,

i.e., those in which the employment decision was taken for

both lawful and unlawful reasons. See Price Waterhouse v.

Hopkins, 490 U.S. 228, 240-247 (1989) (plurality opinion).

Under Price Waterhouse, once a plaintiff establishes that an

unlawful reason was a substantial or motivating factor in the

employment decision, the burden shifts to the employer to

prove by a preponderance of the evidence that it would have

made the same decision absent reliance on the unlawful rea-

son. Jd. at 258 (plurality opinion). An employer avoids Title

VII liability altogether if it succeeds on its “same-decision”

defense. Ibid. Although Price Waterhouse altered the bur-

dens of proof in mixed-motive cases, it reaffirmed that the

McDonnell Douglas pretext framework would remain the

dominant rule in Title VII disparate treatment cases. See

id. at 247 (plurality opinion); id. at 260 (opinion of White, J.);

id. at 261 (opinion of O’Connor, J.); id. at 280 (Kennedy, J.,

dissenting).

Congress modified the Price Waterhouse mixed-motive

test when it passed the Civil Rights Act of 1991, Pub. L. No.

102-166, 105 Stat. 1071. As amended in 1991, Title VII pro-

vides: “Except as otherwise provided in this subchapter, an

unlawful employment practice is established when the com-

plaining party demonstrates that race, color, religion, sex, or

national origin was a motivating factor for any employment

practice, even though other factors also motivated the prac-

tice.” 42 U.S.C. 2000e-2(m). The 1991 amendments over-

ruled Price Waterhouse’s holding that an employer could

avoid Title VII liability entirely by showing that it would

have taken the same employment action absent the discrimi-

natory motive. Under the statute, an employer violates Sec-

tion 2000e-2(m) if unlawful discrimination was a motivating

factor for the employment practice, but it can limit its

liability to declaratory relief, limited injunctive relief, and

attorney’s fees and costs if it shows that it would have taken

the same action absent the discrimination. See 42 U.S.C.

2000e-5(g)(2)(B). The nature of the evidence that a plaintiff

must show under Section 2000e-2(m) to trigger the Pric°

Waterhouse mixed-motive analysis is the issue before the

Court in this case.

2. Respondent Catharina Costa worked as a truck driver

and heavy equipment operator in a warehouse belonging to

petitioner Caesars Palace Hotel & Casino in Las Vegas, Ne-

vada. Respondent was the only woman covered by a collec-

tive bargaining agreement between Caesars and her union.

During respondent’s seven years of employment at Caesars,

she was repeatedly disciplined for, among other infractions,

tardiness, absenteeism, and using vulgar language. Accord-

ing to respondent, however, male workers were not disci-

plined for the same conduct and so the disciplinary actions

taken against her amounted to gender discrimination. Pet.

- <8 RET ~ . _

App. 3a-6a. In 1994, respondent was involved in a verbal and

physical confrontation with another co-worker, Herb Gerber,

that resulted in respondent’s termination and Gerber’s

suspension. /d. at 6a. Respondent was terminated, accord-

ing to petitioner, because of her history of disciplinary prob-

lems, as well as her altercation with Gerber. Jd. at 7a.

3. After an arbitrator upheld her termination, respon-

dent filed this Title VII action against petitioner, alleging

gender discrimination in the conditions of her employment

and termination. The case was tried before a jury. At the

conclusion of the evidence, the district court instructed the

jury that:

The plaintiff has the burden of proving each of the fol-

lowing by a preponderance of the evidence:

1. Costa suffered adverse work conditions, and

2. Costa’s gender was a motivating factor in any such

work conditions imposed upon her. Gender refers to the

quality of being male or female. If you find that each of

these things has been proved against a defendant, your

verdict should be for the plaintiff and against the defen-

dant. On the other hand, if any of these things has not

been proved against a defendant, your verdict should be

for the defendant.

Pet. App. 57a. Petitioner stated at trial that it had no objec-

tion to this instruction. Tr. 460.

The district court also gave the jury the following “mixed-

motive” instruction:

You have heard evidence that the defendant’s treatment

of the 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 the plaintiff, the plaintiff is entitled to your

verdict, even if you find that the defendant’s conduct was

also motivated by a lawful reason.

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

that the defendant would have treated plaintiff similarly

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

employment decision.

Pet. App. 33a-34a, 57a-58a. Petitioner objected to this in-

struction on the ground that the case was not a “mixed mo-

tive” case because respondent failed to submit “direct evi-

dence” that her gender was a motivating factor in her firing.

Tr. 460.

The jury was given a Verdict Form in which it was first

asked:

1. Do you find that Defendant Caesars Palace violated

the Civil Rights Act in that Plaintiff’s gender (sex) was a

motivating factor in any adverse condition of plaintiff’s

employment?

Pet. App. 88a. The jury answered this question “Yes.” Ibid.

The Verdict Form then stated:

If you answered yes, please answer the following special

interrogatory:

2. Do you find that the defendant’s wrongful treatment

of plaintiff was motivated both by gender and a lawful

reason(s)?

i

P.82/05

Pet. App. 89a. The jury answered this question “Yes.” /bid.

The Form then instructed the jury to answer the third ques-

tion:

8. If so, has the defendant proved by a preponderance of

the evidence that the defendant would have made the

same decisions if the plaintiff’s gender had played no role

in the employment decision?

Pet. App. 89a. The jury answered this question “No.” /bid.

The jury awarded respondent $64,377.74 for “financial loss,”

$200,000 in damages for emotional pain, suffering, inconven-

ience, mental anguish, and loss of enjoyment of life, and

$100,000 in punitive damages. /d. at 89a-90a.

4. A panel of the Ninth Circuit reversed, holding that “in

the absence of substantial evidence of conduct or statements

by the employer directly reflecting discriminatory animus,

the giving of a mixed-motive instruction was reversible er-

ror.” Pet App. 55a. The panel noted that the Ninth Circuit

had not previously addressed “what evidentiary burden a

plaintiff must satisfy to prove her gender was a motivating

factor in an adverse employment action.” /d at 60a. Relying

on Justice O’Connor’s concurring opinion in Price Water-

house and decisions of other circuits, the panel held that be-

cause respondent had failed to produce direct and substan-

tial evidence of discriminatory intent, “the district court

erred in giving the jury a mixed-motive instruction.” Jd. at

65a.

5. Rehearing the case en banc, the Ninth Circuit affirmed

in part and reversed and remanded in part. In a 9-4 decision,

the majority held that “Title VII imposes no special or

heightened evidentiary burden on a plaintiff in a so-called

‘mixed-motive’ case.” Pet. App. 2a. The en bane court ac-

cordingly affirmed the district court’s liability finding, as

well as the jury’s back pay and compensatory damages

awards, In light of this Court’s intervening decision in Kol-

P.O3/-05

stad v. American Dental Ass'n, 527 U.S. 526 (1999), the

court of appeals remanded the case for reconsideration of the

award of punitive damages. Pet. App. 45a-47a.

The en banc court disagreed with the panel’s conclusion

that under Price Waterhouse a plaintiff must produce direct

and substantial] evidence of discriminatory intent. Rather,

the court characterized Justice O’Connor’s discussion of the

direct evidence requirement in Price Waterhouse as merely

a “passing reference” (Pet. App. 8a), and declined, “where

holdings of the Court are not at issue, to dissect the sen-

tences of the United States Reports as though they were the

United States Code” (id. at 23a-24a (quoting St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1998))). The en banc

court also reasoned that because the 1991 amendments to Ti-

tle VII specified that employers may no longer escape liabil-

ity simply by showing other sufficient causes for their ac-

tions, “the premise for Justice O’Connor’s comment is wholly

abrogated”; i.e. “there is no longer a basis for any specia!

‘evidentiary scheme’ or heightened standard of proof to de-

termine ‘but for’ causation.” Pet. App. 17a.

Applying this standard, the en bane court concluded that

the evidence was sufficient to warrant issuance of a mixed-

motive instruction (Pet. App. 32a-35a); that respondent pre-

sented sufficient evidence for a reasonable jury to find that

sex discrimination was a motivating factor in a number of

adverse employment actions, including her termination (id.

at 36a-42a); and that “[tjhere was a substantial basis for the

jury to conclude that Caesars did not meet its burden in

demonstrating that it would have made the same decision

absent consideration of sex” (id, at 43a).

6. The four dissenting judges concluded that “[tJhe ma-

jority’s analysis is not persuasive and should be corrected

because it disregards the holding of [Price Waterhouse) that

is reflected in Justice O’'Connor’s concurring opinion.” Pet.

App. 48a. After summarizing the plurality and concurring

opinions in Price Waterhouse, the dissenters concluded that

Justice O’Connor’s opinion requiring the use of direct evi-

dence to prove a mixed-motive case was the holding under

the rule of Marks v. United States, 430 U.S. 188, 193 (1977),

because that opinion “concurred in the judgment on the nar-

rowest grounds.” Pet. App. 49a. The 1991 amendments to

Title Vil, moreover, “did not modify the Supreme Court’s

prior holding on the need for direct evidence.” Jd. at 50a.

The dissenters further observed that “the majority’s holding

puts our circuit in conflict with almost all others” (id. at 51a),

and emphasized that “(t]he Supreme Court’s seminal opinion

in McDonnell Douglas would be effectively overruled by an

incorrect interpretation of [Price Waterhouse] that jettisons

the direct evidence requirement” (id. at 53a).

SUMMARY OF ARGUMENT

The court of appeals erred in holding that a plaintiff in a

Title VII mixed-motive case does not have a heightened evi-

dentiary burden of presenting direct evidence of discrimina-

tory intent. Contrary to the majority of courts of appeals

that have addressed the issue, the en banc court failed to

find that this Court’s decision in Price Waterhouse requires

plaintiffs in Title VII cases to proffer direct and substantial

evidence of discriminatory intent as a prerequisite to estab-

lishing liability under the mixed-motive framework.

The en bane court also erred in holding that the 1991

amendments to Title VII abrogate any need for a heightened

evidentiary standard for plaintiffs in mixed-motive cases.

Both the text and legislative history of Section 107 of the

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1075,

demonstrate that Congress enacted the relevant 1991

amendments to overrule only the portion of the Price Wa-

terhouse decision that excused an employer from all liability

upon a showing that it would have taken the same employ-

ment action without regard to any illegitimate factor. Far

10

from undermining the need for a heightened, direct evidence

standard in mixed-motive cases, Section 107, by expanding

liability in mixed-motive cases, supports requiring plaintiffs

to make a strong initial showing, through direct evidence,

that discriminatory intent in fact motivated the challenged

employment action. Congress, moreover, did not evidence

an intent to modify the distinction drawn in Price Water-

house between pretext and mixed-motive cases, nor did it

attempt to alter Price Waterhouse’s holding regarding the

plaintiff's evidentiary burden in mixed-motive cases, includ-

ing the direct evidence requirement. Indeed, before the

decision below, every court of appeals that had considered

the effect of the 1991 amendments on Price Waterhouse’s

direct evidence requirement had found that those amend-

ments do not address whether a plaintiff must show direct

evidence of discrimination as a precondition to applying a

mixed-motive analysis.

The courts of appeals, however, are in disagreement over

the meaning of “direct evidence.” Although the question is

not free from doubt, the better reading of Price Waterhouse

is that direct evidence means non-circumstantial or non-

inferential evidence. In other words, in order to justify shift-

ing the burden of persuasion to the defendant, the plaintiff

must submit evidence that, without resort to inferences or

presumptions, establishes that race or gender was a substan-

tial, motivating factor in the employer’s decision.

For these reasons, the Court should vacate the Ninth Cir-

cuit’s holding regarding the plaintiff’s evidentiary burden in

mixed-motive cases, reaffirm the direct evidence require-

ment announced in Justice O’Connor’s Price Waterhouse

opinion, and remand this case for further proceedings under

the correct legal standard.

=—~

|

1]

ARGUMENT

PLAINTIFFS IN TITLE VII MIXED-MOTIVE CASES

MUST ADDUCE DIRECT EVIDENCE OF DISCRIMI-

NATORY INTENT TO INVOKE THE MIXED-MOTIVE

ANALYSIS UNDER PRICE WATERHOUSE V. HOP-

KINS

In 1989, a plurality of this Court in Price Waterhouse v.

Hopkins, 490 U.S. 228, 241, held that a plaintiff may recover

for gender discrimination under Title VII if she shows that

gender was a motivating factor, but not the sole motive, in

the contested employment decision. The employer would not

be liable in such a case, however, if it presents evidence

showing that it would have made the same decision regard-

less of the discriminatory motive. Jd. at 244-245. Justice

White and Justice O’Connor separately concurred in the

judgment. The plurality opinion and both concurring opin-

ions emphasized that, unlike in single-motive or “pretext”

cases, a plaintiff in a mixed-motive case must meet a height-

ened burden of proof by presenting evidence that discrimi-

natory intent played a substantial, motivating role in the

challenged employment decision. /d.-at 248-250 & n.13 (plu-

rality opinion); id. at 259 (opinion of White, J.); id. at 275

(opinion of O’Connor, J.).

Justice O’Connor’s concurrence further emphasized that a

plaintiff may invoke this “mixed-motive” test only after the

plaintiff presents “direct evidence that decisionmakers

placed substantial negative reliance on [the] illegitimate cri-

terion.” 490 U.S. at 277. The four-Justice plurality acknow]-

edged Justice O’Connor’s direct evidence requirement and

stated that its formulation of the heightened showing a

plaintiff must make in a mixed-motive case, which focused on

the requirement that the illegitimate criterion was a moti-

vating or substantial factor in the adverse employment

action, was not “meaningfully different from” Justice

12

O’Connor’s direct evidence standard. /d. at 250 n.13. Simi-

larly, the three dissenting Justices plainly read Justice

O’Connor’s direct evidence requirement as part of the

Court’s holding. Jd. at 280 (“I read the opinions as estab-

lishing that in a limited number of cases Title VII plaintiffs,

by presenting direct and substantial evidence of discrimina-

tory animus, may shift the burden of persuasion to the de-

fendant to show that an adverse employment decision would

have been supported by legitimate reasons. 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.”); id. at

290-291 (“(T]he Court makes clear that the Price Water-

house scheme is applicable only in those cases where the

plaintiff has produced direct and substantial proof that an

impermissible motive was relied upon in making the decision

at issue.”).

Moreover, all of the opinions in Price Waterhouse recog-

nized the continuing importance of the “pretext” framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973), and Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 256 (1981), for analyzing disparate

treatment cases under Title VII. See 490 U.S. at 247 (plu-

rality opinion) (“{TJhe premise of Burdine is that either a le-

gitimate or an illegitimate set of considerations led to the

challenged decision. To say that Burdine’s evidentiary

scheme will not help us decide a case admittedly involving

both kinds of considerations is not to cast aspersions on the

utility of that scheme in the circumstances for which it was

designed.”); id. at 260 (opinion of White, J.) (applying [ Price

Waterhouse] approach to causation in Title VII cases is not a

departure from, and does not require modification of, the

Court’s holdings in [Burdine and McDonnell Douglas)”), id.

at 261 (opinion of O’Connor, J.) (“The evidentiary rule the

Court adopts today should be viewed as a supplement to the

yen eng PL A II et

13

careful framework established by our unanimous decisions in

[McDonnell Douglas and Burdine).”); id. at 280 (Kennedy,

J., dissenting) (“(T)he Court alters the evidentiary frame-

work of McDonnell Douglas and Burdine for a closely de-

fined set of cases.”). The Court, therefore, suggested that

most Title VII cases would continue to be analyzed under

the McDonnell Douglas/Burdine pretext analysis, and that

the burden of persuasion would shift to the defendant only

where the plaintiff had satisfied a heightened burden of

showing that an impermissible consideration was a substan-

tial, motivating factor in the employer’s decision.

Acting specifically in response to the Price Waterhouse

decision, Congress amended Title VII in 1991, to provide

that “an unlawful employment practice is established when

the complaining party demonstrates that race, color, relig-

ion, sex, or national origin was a motivating factor for any

employment practice, even though other factors also moti-

vated the practice.” Civil Rights Act of 1991, Pub. L. No.

102-166, § 107(a), 105 Stat. 1075 (42 U.S.C. 2000e-2(m)). Con-

gress also provided that “(o}n a claim in which an individual

proves a violation under section 2000e-2(m)” (i.e., Price Wa-

terhouse mixed-motive claims), if the employer “demon-

strates that [it] would have taken the same action in the ab-

sence of the impermissible motivating factor,” the employer

would be liable for only declaratory relief, injunctive relief,

attorney's fees and costs, but not damages, reinstatement, or

back pay. Pub. L. No. 102-166, § 107(b), 105 Stat. 1075 (42

U.S.C. 2000e-5(g)(2)(B)). Through these amendments, Con-

gress overturned the holding in Price Waterhouse that al-

lowed employers to avoid Title VII liability entirely by

showing that the same employment action would have been

taken absent the discriminatory motive. Congress, however,

did not attempt to modify the clear distinction drawn in

Price Waterhouse between pretext and mixed-motive cases,

14

nor did it attempt to alter its holding regarding the

plaintiff's evidentiary burden in mixed-motive cases.

The Ninth Circuit's decision in this case holds that the

1991 amendments to Title VII altered the standards of cau-

sation and proof in all Title VII cases and largely eliminated

the distinction between pretext and mixed-motive cases.

Although there is some reason to doubt whether Title VII

initially drew a sharp distinction between pretext and

mixed-motive cases, the courts have consistently treated

these cages as distinct. Moreover, the 1991 amendments, by

providing distinct remedies in mixed-motive cases, appear to

reinforce that distinction. In addition, by introducing jury

trials, the 1991 amendments created the possibility that jury

instructions in mixed-motive cases could confuse jurors into

thinking that the defendant bears the burden of proof on

issues related to the defendant’s conduct. For these reasons,

virtually every court of appeals to address the plaintiff's

burden in a mixed-motive case has maintained the distinc-

tion between the types of cases and employed some form of

the direct evidence test to police the line. That approach

reflects the better view of the 1991 amendments.

A. Under Price Waterhouse v. Hopkins, Plaintiffs In

Mixed-Motive Cases Must Initially Present Direct

Evidence Of Discriminatory Intent

The Ninth Circuit’s en bane decision dismissed Justice

O’Connor’s requirement that a plaintiff must present “direct

evidence” that an impermissible consideration was a sub-

stantial, motivating factor in an employment decision as be-

ing merely a “passing reference.” Pet. App. 8a. As the dis-

cussion above demonstrates, that characterization is plainly

mistaken.

Despite the apparently fragmented decision in Price Wa-

terhouse, all nine Justices agreed that the standard the

Court announced for mixed-motive cases did not alter the

15

analytical framework of the McDonnell Douglas pretext

standard, which they acknowledged would still govern tradi-

tional disparate treatment cases under Title VII where the

jury must choose between the plaintiff’s showing of an im-

permissible motive and the employer’s showing of a legiti-

mate one. See Price Waterhouse, 490 U.S. at 246-247 (plu-

rality opinion); id. at 260 (opinion of White, J.); id. at 270

(opinion of O’Connor, J.); id. at 280 (Kennedy, J., dissenting).

It is also clear that Justices White and O’Connor both agreed

with the four Justices in the plurality that a plaintiff in a

mixed-motive case must satisfy a heightened burden of proof

by presenting evidence that discriminatory intent played a

substantial role in the challenged employment decision. /d.

at 247 n.12, 248-249 (plurality opinion); id. at 259 (opinion of

White, J.); id. at 275 (opinion of O’Connor, J.). The plurality

disclaimed any meaningful difference between its standard

and Justice O’Connor’s direct evidence requirement, id. at

250 n.13, and the three dissenting Justices plainly viewed the

direct evidence requirement as an integral part of the

Court’s holding, id. at 280, 290-291.

Indeed, prior to the Ninth Circuit’s en banc decision in

this case, all of the courts of appeals had interpreted Price

Waterhouse as requiring a plaintiff to present direct evi-

dence that an impermissible consideration was a substantial,

motivating factor in an employment decision before shifting

the burden of persuasion to the employer to show that it

would have taken the same employment action without re-

gard to the impermissible consideration. The First and

Third Circuits have explicitly held that, under the rule of

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

O’Connor’s concurring opinion is the binding holding in Price

Waterhouse.' Moreover, the Fifth, Sixth, Seventh, Eighth,

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

(ist Cir. 1999) (“Most courts agree that Justice O’Connor’s seminal

16

Tenth, and Eleventh Circuits have implicitly endorsed Jus-

tice O’Connor’s concurring opinion by requiring plaintiffs in

mixed-motive cases to present direct evidence of discrimina-

tion to shift the burden of persuasion to the employer to

show that the same adverse employment decision would

have been made regardless of the discrimination.” The D.C.

and Second Circuits also require plaintiffs in mixed-motive

cases to proffer evidence of conduct or statements that re-

flect directly the alleged discriminatory intent and that bear

directly on the contested employment decision, even though

they question whether Justice O’Connor’s direct evidence

concurrence in Price Waterhouse furnishes the best device for testing

quality” of the available evidence.); Fakete v. Aetna, Inc., 308 F.3d 335,

337 n.2 (3d Cir. 2002) (“Justice O’Connor’s opinion * * * represents the

holding of the fragmented Court in Price Waterhouse.”).

2 See, e.g., Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216-1217 (5th

Cir. 1995) (employees not entitled to mixed-motive jury instruction

because plaintiff's proffered statements were not direct evidence of age

discrimination); Laderach v. U-Haul, 207 F.3d 825, 829 (6th Cir. 2000)

(supervisor's statements that he would not promote plaintiff because of

her gender and would not allew her to answer the telephone because

“women are not mechanically inclined” were direct evidence of

discriminatory intent); Oates v. Discovery Zone, 116 F.3d 1161, 1170-1171

(7th Cir. 1997) (plaintiff failed to present direct evidence of discriminatory

intent that related to the contested employment action); Mohr v. Dustrol,

Inc., 306 F.3d 636, 640-641 (8th Cir. 2002) (foreman’s statements that he

would not have any women on his crew constituted direct evidence of

discrimination); Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472,

1478 (10th Cir. 1996) (stereotyped remarks reflected only the supervisor's

personal opinion and did not qualify as direct evidence of discrimination by

employer); EEOC v. Alton Packaging Corp., 901 F.2d 920, 923 (11th Cir.

1990) (decisionmaker’s comment that he would not hire blacks was direct

evidence that racial discrimination motivated the employer’s promotion

decision).

LN

17

requirement is the holding in Price Waterhouse.’ As dis-

cussed in Part C, infra, the courte of appeals have adopted

different standards for precisely what constitutes “direct

evidence,” but every other court of appeals that has applied

Price Waterhouse has adopted the requirement that plain-

tiffs in mixed-motive cases must meet a heightened burden

of proof.

B. The Civil Rights Act Of 1991 Did Not Alter The

Plaintiff's Burden To Adduce Direct Evidence of

Discrimination In Mixed-Motive Cases

The Ninth Circuit also erred in concluding that the Civil

Rights Act of 1991 altered the standards of causation and

proof in all Title VII cases, thereby largely eliminating the

distinction between pretext and mixed-motive cases. Pet.

App. 16a-18a. As with its reading of Price Waterhouse, the

Ninth Circuit’s interpretation of Congress’s 1991 amend-

ments to Title VII stands alone. Except for the en banc deci-

sion below, every court of appeals that has considered the

effect of the 1991 amendments on Price Waterhouse’s direct

evidence requirement hag found that those amendments do

not address whether a plaintiff must show direct evidence of

discrimination as a precondition to applying a mixed-motive

analysis. See, ¢.g., Weston-Smith v. Cooley Dickinson Hosp.,

Inc., 282 F.8d 60, 64 (1st Cir. 2002) (stating that the 1991

amendments are “silent on exactly what showing is needed

to trigger a mixed-motive case”); Watson v. SEPTA, 207

F.3d 207, 216 (8d Cir. 2000), cert. denied, 531 U.S. 1147

(2001); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552

(10th Cir.), cert. denied, 528 U.S. 818 (1999); Tyler v.

Bethlehem Stee! Corp., 958 F.2d 1176, 1183 (2d Cir.), cert.

denied, 506 U.S. 826 (1992). In addition, shortly after

> See, ¢.g., Thomas v. NFL Players Aos'n, 131 F.3d 198, 208 (D.C. Cir.

1997); Tyler v. Bethlehem Stee! Corp., 958 F.2d 1176, 1183 (2d Cir.), cert.

denied, 606 U.S. 826 (1982).

P.04-05

P.05/05

18

Congress enacted the 1991 amendments, the EEOC adopted

guidelines setting forth the standards of proof and causation

for pretext and mixed-motive cases, respectively, and ana-

lyzing the effect of the 199] amendments on those standards.

See EEOC: Revised Enforcement Guide on Recent Develop-

ments in Disparate Treatment Theory, 8 Lab. Rel. Rep.

(BNA) 405:6915 (July 7, 1992) (EEOC Guide). As those

guidelines explain, “most appellate court decisions that have

addressed the question since Price Waterhouse have agreed

with Justice O’Connor that direct evidence is required for

the mixed motives framework to apply. Nothing in Section

107 [of the 1991 amendments) alters this aspect of the

Supreme Court's decision.” Id. at 405:6921-405:6922 (empha-

sis added).

Both the text and legislative history of the 1991 Title VII

amendments indicate that those amendments dealt solely

with the scope of the employer’s liability in an appropriate

mixed-motive case. Congreas intended to overrule only one

aspect of this Court’s Price Waterhouse decision—-to permit

limited liability even where a defendant in a properly classi-

fied mixed-motive case has demonstrated that it would have

taken the same employment action without regard to the

impermissible factor that tainted its decision. Congress,

however, did not alter the McDonnell Douglas/Burdine pre-

text framework or the direct evidence standard for deter-

mining when a case is properly subject to a mixed-motive

analysis. Nor did Congress intend to end the distinction

between pretext and mixed-motive cases that has long been

an aspect of this Court’s Title VII jurisprudence and that

none of the separate opinions in Price Waterhouse sought to

question.

19

1. The text of the 1991 amendments demonstrates

that Congress did not alter Price Waterhouse’s

direct evidence requirement

Section 107(a) of the Civil Rights Act of 1991 expressly

applies only to mixed-motive cases by providing that an un-

lawful employment practice is established where “the com-

plaining party demonstrates that race, color, religion, sex, or

national origin was a motivating factor for any employment

practice, even though other factors also motivated the prac-

tice.” 42 U.S.C. 2000e-2(m) (emphasis added). The “other

factors” phrase is clearly a reference to mixed-motive cases,

and its inclusion belies any suggestion that the “motivating

factor” analysis was intended to apply to pretext as well as

mixed-motive cases. Indeed, there would have been no need

to add this phrase if Congress intended all disparate treat-

ment cases to be considered the same way. See Watson, 207

F.3d at 217 (interpreting Section 2000e-2(m) to avoid ren-

dering statutory language superfluous or meaningless). If

Congress had wanted to apply the motivating factor stan-

dard to all Title VII cases, it could have done so directly by

simply defining Section 2000e-2(a)’s prohibition on employ-

ment actions taken “because of” race, gender, or other im-

permissible factors as requiring the plaintiff in all cases to

prove only that the discriminatory intent was a motivating

factor in the action. By including the reference to “other fac-

tors also motivat[ing] the practice,” Congress could only

have intended to limit the scope of Section 2000e-2(m) to

Price Waterhouse-type mixed-motive cases.

In addition, the term “demonstrates” in Section 107(a) is

identical to Justice O’Connor’s use of that term in her con-

curring opinion and suggests that, like the opinions in Price

Waterhouse themselves, the amendment was only intended

to affect mixed-motive cases. See, e.g., Price Waterhouse,

490 U.S. at 276 (opinion of O’Connor, J.) (“Requiring that the

20

plaintiff demonstrate that an illegitimate factor played a

substantial role in the employment decision identifies those

employment situations where the deterrent purpose of Title

VII is most clearly implicated.”) (emphasis added). As the

Third Circuit explained in Watson, “the term ‘demonstrates’

is not the most apt choice if the drafters wanted to describe,

not just cases in which the plaintiff offers ‘direct’ evidence of

discriminatory animus, but also the great number of dispa-

rate treatment cases in which the plaintiff, proceeding under

McDonnell Douglas, establishes the elements of a prima fa-

cie case and urges the factfinder to infer discriminatory ani-

mus from the employer’s asserted failure to offer a credible

alternative reason for the contested employment action.”

207 F.3d at 218.

In addition, Section 107(b), 42 U.S.C. 2000e-5(g)(2)(B),

which limits the types of remedies available in mixed-motive

cases, expressly states that this provision applies only to

“elaim[s] in which an individual proves a violation under sec-

tion 2000e-(2)(m).” If, as the Ninth Circuit assumed, Section

107(a) had been meant to affect all disparate treatment cases

against employers, then Section 107(b) naturally would have

been drafted to apply to all cases brought wnder 42 U.S.C.

2000e-2(a), the provision that sets out unlawful employment

practices. See Watson, 207 F.3d at 218. The fact that

Congress explicitly limited Section 2000e-5(g)(2)(B) to apply

only to claims under Section 2000e-2(m) confirms “that

Congress intended to draw a distinction between most

disparate-treatment cases against employers (which are

brought under 42 U.S.C. § 2000e-2(a)) and a subset of cases

‘in which an individual proves a violation under Section

2000e-2(m).’” Watson, 207 F.3d at 218. If Congress did not

intend to preserve the separate burdens of proof between

pretext and mixed-motive cases, it would not have provided

that Section 2000e-5(g)(2)(B) applies only to claims under

Section 2000e-(2)(m).

_——— a

NE —

21

This reading of the 1991 amendments is further supported

by the context in which Congress enacted them. At the time

Congress enacted the 1991 amendments, it was settled that

Price Waterhouse altered the standard of proof only in

mixed-motive cases and that most Title VII cases would con-

tinue to be evaluated under McDonnell Douglas pretext

principles, which at all times place the burden of persuasion

on the plaintiff. Moreover, before the enactment of the 1991

amendments, several courts of appeals had expressly

adopted the direct evidence requirement announced in Jus-

tice O’Connor’s Price Waterhouse opinion. See, e.g., Jackson

v. Harvard Univ., 900 F.2c 464, 467 (1st. Cir.) (“Direct evi-

dence is evidence which, in and of itself, shows a discrimina-

tory animus.”), cert. denied, 498 U.S. 848 (1990); Gagne v.

Northwestern Nat'l Ins. Co., 881 F.2d 309, 315-316 (6th Cir.

1989) (“[T]he Price Waterhouse Court specifically admon-

ished that the new standard would apply only in the limited

circumstances where the employee had produced direct evi-

dence” of discriminatory intent.), overruled on other

grounds, Kline v. Tennessee Valley Auth., 128 F.3d 337 (6th

Cir. 1997); EEOC v. Alton Packaging Corp., 901 F.2d 920,

923 (11th Cir. 1990) (“In a direct evidence case, the plaintiff

must produce direct testimony that the employer acted with

discriminatory motive.”).

Accordingly, when Congress enacted the 1991 amend-

ments, it did so against the background of settled case Jaw

defining the standards of proof and causation for McDonnell

Douglas pretext cases, on the one hand, and for plaintiffs to

shift the burden of persuasion to the defendant in mixed-mo-

tive cases, on the other. This Court should not presume that

by enacting the 1991 amendments, which on their face only

address remedies in mixed-motive cases, Congress intended

to eliminate either the distinctions between pretext and

mixed-motive cases or the direct evidence requirement that

defines the line between the two. See United States v.

22

Wells, 519 U.S. 482, 495 (1997) (“(W]Je presume that Con-

gress expects its statutes to be read in conformity with this

Court’s precedents.”). C£ CFTC v. Schor, 478 U.S. 833, 845-

846 (1986) (Congress’s decision not to alter an established

interpretation of a statute upon reenacting the statute is

“persuasive evidence that the interpretation is the one in-

tended by Congress.”) (citation omitted); F'DIC v. Philadel-

phia Gear Corp., 476 U.S. 426, 437 (1986).

2. The legislative history of the 1991 amendments

confirms that Congress did not alter Price Wa-

terhouse’s direct evidence requirement

The legislative history of the 1991 amendments further

demonstrates Congress’s intent to preserve the distinction

between mixed-motive and pretext cases and to change only

the remedies applicable to mixed-motive cases. See, e.9.,

Watson, 207 F.3d at 219; Fields v. New York State Office of

Mental Retardation & Developmental Disabilities, 115 F.3d

116, 124 (2d Cir. 1997); Fuller v. Phipps, 67 F.3d 1137, 1144

(4th Cir. 1995). For example, the House Report makes clear

that Congress designed Section 107 to “overrule[] one aspect

of the Supreme Court’s decision in Price Waterhouse.” H.R.

Rep. No. 40, 102d Cong., 1st. Sess., Pt. 1, at 48 (1991) (em-

phasis added); accord id. at 101 (noting bill “overturns part

of the Supreme Court’s decision in Price Waterhouse in or-

der to hold an employer liable whenever discriminatory con-

siderations play a part in an employment decision, even if

other, legitimate motives are also present”) (emphasis

added); H.R. Rep. No. 40, supra, Pt. 2, at 16 (“Section 5 over-

turns one aspect of the Supreme Court’s decision in Price

Waterhouse.”) (emphasis added). Under the heading, “The

Need To Overturn Price Waterhouse,” the House Report

identifies the only portion of Price Waterhouse that the leg-

islation was meant to overrule as the holding that “the de-

fendant may avoid a finding of liability * * * by proving

23

by a preponderance of the evidence that it would have made

the same decision even if it had not taken the plaintiff’s gen-

der into account.” H.R. Rep. No. 40, supra, Pt. 1, at 46

(emphasis added). The Report further explains that Section

107 “would clarify that proof that an employer would have

made the same employment decision in the absence of

discriminatory reasons is relevant to determine not the

liability for discriminatory employment practices, but only

the appropriate remedy.” Id. at 48. Moreover, the section of

the House Report containing minority views on the

legislation expressly characterizes the amendments as

“dealing with mixed motive cases.” Jd. at 157. :

3. The Ninth Circuit’s approach would Srustrate

much of this Court’s Title VII jurisprudence

The Ninth Circuit’s reading of the 1991 amendments

would fundamentally alter all Title VII cases by allowing a

plaintiff to proceed in every case under the instructions ap-

plicable to mixed-motive cases. There is no support in the

1991 Act to show that Congress intended to transform Title

VII in such a way.

The Ninth Circuit’s en banc decision threatens to elimi-

nate the traditional distinction between pretext and mixed-

motive cases. Indeed, the en banc majority stated that

“(njor are ‘single-motive’ and ‘mixed-motive’ cases funda-

mentally different categories of cases.” Pet. App. 3la. The

majority's formulation of the mixed-motive analysis, as the

dissent pointed out, would improperly provide an incentive

for plaintiffs to “opt for the [Price Waterhouse] framework

to avoid having to show pretext.” Jd. at 53a.

. Lastly, far from undermining the premise for imposing a

higher evidentiary burden on plaintiffs as the Ninth Circuit

surmised, Section 107 of the Civil Rights Act of 1991 pro-

vides even greater support for such a requirement. Under

that amendment, an employer can no longer avoid Title VII

24

liability by demonstrating that it would have made the same

decision absent consideration of an impermissible factor.

As the Fourth Circuit stated in Fuller, “(t}he Civil Rights

Act of 1991 modified the Price Waterhouse scheme, making

mixed-motive treatment more favorable to plaintiffs.” 67

F.3d at 1142 (emphasis added). Justice O’Connor noted in

Price Waterhouse that the burden-shifting that occurs in a

mixed motive case is “strong medicine,” 490 U.S. at 262, such

that the plaintiff must make a “strong showing of illicit moti-

vation” before “the factfinder is entitled to presume that the

employer's discriminatory animus made a difference to the

outcome, absent proof to the contrary from the employer.”

490 U.S. at 276-277. The 1991 amendments make that

“medicine” even stronger for defendants by expanding the

scope of liability in mixed-motive cases. Accordingly, they

only underscore the need to require plaintiffs to come for-

ward with direct evidence that discriminatory animus played

a substantial, motivating role in the challenged conduct.

C. “Direct Evidence” Of Discrimination Must Directly

Reflect The Alleged Discriminatory Intent And Be

Directly Related To The Challenged Employment

Action

Although, aside from the Ninth Circuit, the courts of ap-

peals are in unison in holding that a plaintiff must satisfy a

heightened standard of proof in order to qualify for a mixed-

motive instruction, they have struggled to define the con-

tours of Price Waterhouse’s direct evidence requirement.

Virtually all of the courts of appeals have interpreted Justice

O’Connor’s reference to “direct evidence” to require, at a

minimum, that the plaintiff’s evidence directly relate to the

decisionmaking process that led to the adverse employment

action at issue. See, e.g., Cronquist v. City of Minneapolis,

237 F.3d 920, 925 (8th Cir. 2001); Thomas v. NFL Players

Ass'n, 131 F.3d 198, 204-205 (D.C. Cir. 1997); Hook v. Ernst

25

& Young, 28 F.3d 366, 374 (3d Cir. 1994); Fuller, 67 F.3d at

1142; Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171. 182

(2d Cir. 1992). That is, the discriminatory motive must be

directly related to the decisionmaker and to the injury

alleged by the plaintiff. As the Seventh Circuit stated in

Oates v. Discovery Zone, 116 F.3d 1161, 1170 (7th Cir. 1997)

a plaintiff's so-called ‘direct’ evidence need not only speak

directly to the issue of discriminatory intent, it must also

relate to the specific employment decision in question.” See

Weston-Smith, 282 F.3d at 65 (direct evidence is evidence

that sufficiently links the person who utters a discriminatory

statement to the decisionmaking process); Simmons v. Oce-

USA, Inc., 174 F.3d 913, 915 (8th Cir. 1999) (defining direct

evidence as “conduct or statements by persons involved in

the decisionmaking process * * * directly reflecting the

alleged discriminavory attitude * * * sufficient to permit

the factfinder to find that that attitude was more likely than

not a motivating factor in the employer’s decision”); De la

Cruz v. New York City Human Res. Admin. Dep't of Soc.

Servs., 82 F.3d 16, 23 (2d Cir.) (stating that “a plaintiff must

initially proffer evidence that an impermissible criterion was

in fact a ‘motivating’ or ‘substantial’ factor in the employ-

ment decision”), mot. denied, 519 U.S. 805 (1996): Fuller. 67

F.3d at 1142 (“What is required * * * is evidence of con-

duct or statements that both reflect directly the alleged

discriminatory attitude and that bear directly on the

contested employment decision.”).

The courts of appeals are divided over whether the direct

evidence requirement also imposes a limitation on the type of

evidence the plaintiff must show to warrant shifting the bur-

den of persuasion to the defendant. Several courts of ap-

peals have read the direct evidence standard as requiring

the plaintiff to submit “evidence, which if believed proves

[the] existence of (a) fact in issue without inference or pre-

sumption.” Rollins v. Tech-South, Inc., 883 F.2d 1525, 1529

26

n.6 (11th Cir. 1987) (quoting Black’s Law Dictionary 413 (5th

ed. 1979)); accord Shorter v. ICG Holdings, Inc., 188 F.3d

1204, 1207 (10th Cir. 1999); Haas v. ADVO Sys., Inc., 168

F.3d 732, 734 n.2 (5th Cir. 1999); Troupe v. May Dep't Stores

Co., 20 F.3d 734, 736 (7th Cir. 1994); Jackson v. Harvard

Univ.. 900 F.2d 464, 467 (Ist. Cir.) (“Direct evidence is

evidence which, in and of itself, shows a discriminatory

animus.”), cert. denied, 498 U.S. 848 (1990). The EEOC has

similarly defined direct evidence as “any written or verbal

policy or statement made by a respondent or respondent offi-

cial that on its face demonstrates a bias against a protected

group and is linked to the complained of adverse action.”

EEOC Guide at 405:6917.4 Moreover, under this approach,

the employer’s statements or conduct relied upon must not

be too remote in time to the challenged employment action.

See Simmons, 174 F.3d at 916 (supervisor’s racial comments

did not constitute direct evidence of discrimination where

the plaintiff failed to show a “causal link” between the racial

comments at issue and his termination two years later);

Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 252-253

(8th Cir. 1995) (finding that document written six years prior

to plaintiff's termination was not direct evidence of

discrimination).

Evidence that merely raises an inference of discrimination

is, therefore, insufficient to shift the burden to the defen-

dant. Unlike pretext cases, the evidence the plaintiff must

present in mixed-motive cases “is so revealing of discrimi-

natory animus that it is not necessary to rely on any pre-

4 The EEOC guidelines, however, note that direct evidence “is not

limited to evidence from which no inferences need be drawn,” but instead

refers to “evidence that ‘relates to actions or statements of an employer

reflecting a discriminatory attitude correlating to the discrimination or

retaliation complained of.'” EEOC Guide at 405:6918-405:6919 n.9

(quoting Caban-Wheeler v. Elsea, 904 F 2d 1549, 1555 (11th Cir. 1990)).

27

sumption from the prima facie case [as is in -

text action] to shift the burden” to the anne. Starccehi

v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir.

1995). Purely statistical evidence, evidence establishing

merely the plaintiff’s qualification for and the availability of

a position, and stray remarks in the workplace by persons

who are not involved in the pertinent decisionmaking proc-

ess—all of which might be sufficient to make out a prima fa-

cle case under McDonnell Douglas—are insufficient for in-

voking the mixed-motive analysis. See Ostrowski, 968 F.2d

at 182; Price Waterhouse, 490 U.S. at 277 (opinion of

O Connor, J.). In addition, remarks by a decisionmaker re-

flecting mere expressions of “personal opinion,” and not ex-

isting policy, do not constitute direct evidence. Tomsic v.

State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1478 (10th Cir.

1996); accord Nitschke, 68 F.3d at 253 (finding no “causal re-

lationship” between the personal views of the president of

the defendant corporation and plaintiff's termination six

years later).°

Other courts of appeals have held that the direct evidence

requirement permits a plaintiff to establish that discrimina-

tory intent was a motivating factor by either direct or cir-

cumstantial evidence. These cases typically emphasize that

| ® Under this reading of direct evidence, relevant documents establish-

ing that an existing policy itself is discriminatory would be sufficient

Heim v. Utah, 8 F.3d 1541, 1546 (10th Cir. 1993); Ostrowski. 968 F.2d at

182. For example, a telephone-marketing corporation's pro-ciection “get-

oaGovwtr calling campaign, in which African-American employees

used a “black script” to call African-American voters while white

employees used a “white script” to call white voters, is direct evidence of

disparate treatment in job assignments based on race. See Ferrill v.

Parker Group, Inc., 168 F.3d 468, 472 (11th Cir. 1999). Statements or

conduct by a person who “played a pivotal role” in the decisionmaker’s

treatment of the plaintiff may also be considered. See Mohr, 306 F.3d at

641; Weston-Smith, 282 F 3d at 65. ;

28

the law generally permits a plaintiff to prove her case with-

out limitation as to the type of evidence upon which she can

rely, and that circumstantial evidence is generally consid-

ered to be as persuasive as direct evidence. See, e.g., Os-

trowski, 968 F.2d at 182; Fakete v. Aetna, Inc., 308 F.3d 335,

338 n.2 (3d Cir. 2002); Bellaver v. Quanex Corp., 200 F.3d

485, 492 (7th Cir. 2000); Medlock, 164 F.3d at 550; Thomas,

131 F.3d at 203; see also Fernandes v. Costa Bros. Masonry,

Inc., 199 F.3d 572, 581-583 (1st Cir. 1999) (collecting cases).

Although the question is not free from doubt, the view

that the direct evidence requirement requires a plaintiff to

submit non-inferential evidence or evidence that on its face

establishes the discriminatory motive appears most consis-

tent with this Court’s decision in Price Waterhouse. Justice

O’Connor in Price Waterhouse, for example, contrasted the

requirement for “direct evidence” to shift the burden of per-

suasion in mixed-motive cases with the evidentiary standard

applicable in pretext cases: “McDonnell Douglas itself dealt

with a situation where the plaintiff presented no direct evi-

dence that the employer had relied on a forbidden factor,”

but instead “was based only on * * * statistical prob-

abilit{ies]” and “inference[s].” 490 U.S. at 270 (emphasis

added). “In the face of this inferential proof, the employer’s

burden was deemed to be only one of production.” Ibid.

(emphasis added). She concluded, however, that “the em-

ployer is not entitled to the same presumption of good faith

where there is direct evidence that it has placed substantial

reliance on factors whose consideration is forbidden by Title

VII.” Jd. at 271 (emphasis added). In other words, “the

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. That the employer’s

burden in rebutting such an inferential case of discrimination

is only one of production does not mean that the scales

should be weighted in the same manner where there is

29

direct evidence of intentional discrimination.” bid.

(emphasis added). The dissent also appears to have used

“direct evidence” to contrast the type of inferential evidence

applicable under the McDonnell Douglas test. See id. at 291

(Kennedy, J., dissenting) (noting that the direct evidence

standard will require lower courts “to make the often subtle

and difficult distinction between ‘direct’ and ‘indirect’ or

‘circumstantial’ evidence”).

Moreover, this reading of direct evidence best furthers

the purposes of Title VII by restricting mixed-motive bur-

den-shifting instructions to only those cases where courts

have a high degree of confidence that the employer’s deci-

sion was tainted by improper motives. As Justice O’Connor

explained, it is only where a plaintiff has produced such di-

rect evidence that discriminatory animus was a substantial,

motivating factor that courts should resort to the “strong

medicine” of imposing on the defendant the burden of prov-

ing that it would have taken the same employment action

without regard to impermissible factors.

30

CONCLUSION

The judgment of the court of appeals should be vacated,

and the case should be remanded for further proceedings

under the correct legal standard.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

RALPH F. BoyD, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

DAVID B. SALMONS

Assistant to the Solicitor

General

DENNIS J. DIMSEY

TERESA KWONG

Attorneys

FEBRUARY 2003