Supreme Court Expands Availability of "Mixed Motive" Defense to Employers Sued for Discrimination
In Desert Palace, Inc. v. Costa, decided on
In most cases, Desert Palace will provide a substantial benefit to the employer, because it holds that if the plaintiff proves that a discriminatory intent was a motivating factor in an employment decision, the employer will be able to avoid liability for compensatory damages, punitive damages, or back pay by proving that the adverse employment decision at issue would have been made even in the absence of discrimination. However, in some cases,
To understand this decision, some history is necessary. Before Desert Palace was decided, the law in "mixed motive" cases was based on the Court's 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In the garden-variety, "single-motive" case, the plaintiff bears the burden of proof at all stages, and may satisfy that burden generally in one of two ways: either by direct evidence of discrimination (e.g., proof that before choosing the younger candidate for promotion instead of the plaintiff, the decision maker was overheard to say, "I want someone young for this job"), or by circumstantial evidence (e.g., the successful candidate was 15 years younger than the plaintiff and had no experience, the plaintiff had consistently "excellent" evaluations, and the only evidence the employer offered for promoting the successful candidate instead of the plaintiff was that the hiring supervisor liked the younger candidate more than the older plaintiff).
Post-Hopkins cases focused on the type and amount of evidence that would be required to shift the burden to the employer. Plaintiffs with any direct evidence of discrimination whatsoever sought a burden-shifting jury charge, effectively creating a presumption of discrimination unless the employer could prove that the employment decision at issue would have been made even in the absence of discrimination. Otherwise, the case would be submitted to the jury as a "circumstantial evidence" case, in which there is a presumption that there was no discrimination unless the plaintiff can prove that the employer's stated reason for the decision was a pretext masking an underlying discriminatory intent. The arguments tended to revolve around whether the quality, quantity, and nature of the plaintiff's "direct evidence" warranted shifting the burden of proof.
In 1991, Congress enacted substantial amendments to Title VII that were intended to reverse several decisions that the Supreme Court had rendered in 1989, and to codify some of the Court's prior decisions that the plaintiff's bar was concerned that a conservative Court might change without intervention from the legislature.
One issue that this amendment did not clarify, and which
Thus, from now on, the employer will be entitled to have the jury decide not only whether the plaintiff has proved that there was discrimination, but also, if the plaintiff has proved that there was discrimination, whether the employer has proved that it would have made the same decision even in the absence of discrimination. If the employer carries this burden, then its exposure will be limited to paying the plaintiff's attorneys' fees, even though the plaintiff has proved discrimination.
The popular press has lauded Desert Palace as a pro-plaintiff decision, probably because it appears to broaden the circumstances in which the burden of proof may be shifted to the employer. Under the Court's decision, a burden-shifting "mixed motive" instruction may be appropriate not only where "direct" evidence of discrimination is present, but on the basis of "circumstantial" evidence as well - in other words, in all employment discrimination cases. When Desert Palace was first decided, however, those who regarded it as a pro-plaintiff decision probably tended to ignore the fact the Court stated emphatically that the burden of proof may be shifted to the employer only if the jury first finds that the plaintiff has proved discrimination, whether by direct or circumstantial evidence. Properly understood, the burden shift generally cannot help the plaintiff: it comes into play only where the plaintiff has proven his/her case in any event, and it gives the employer in such a case an opportunity to limit the plaintiff's recovery to attorneys' fees where, without the charge, the plaintiff would be entitled to other forms of relief (i.e., compensatory damages, punitive damages, and back pay).
To be sure, there will be cases in which the shifting of the burden of proof to the employer will confuse the jury, or invite juries to render compromise verdicts, with the result that employers will lose some cases they should have won. But in those cases, the employer will have to pay only the plaintiff's attorney's fees. There will be other cases - especially close cases - in which the employer would have lost anyway on the question of whether there was discrimination, but avoids liability by proving that it would have made the same decision in the absence of the discriminatory factors. On balance, although it is impossible to say for sure, there probably will be more of the latter cases than the former. Certainly the extent to which