Supreme Court Holds that Plaintiffs Are Entitled To A "Mixed Motive" Jury Instruction In All Title VII Cases
The Employment and Labor Law Alert
July 9, 2003
A unanimous decision by the United States Supreme Court, in Desert Palace, Inc., d/b/a Caesar’s Palace Hotel & Casino v. Costa, 539 U.S. ____ (June 9, 2003), concluded that in Title VII cases a plaintiff need not present direct evidence of discrimination in order for the trial court to give the jury “mixed motive” instruction, thus overruling a number of courts that had required direct evidence of discrimination before giving the plaintiff the benefit of a “mixed motive” jury instruction. The “mixed motive” instruction requires a jury to find in favor of a plaintiff if the jury determines that a protected characteristic was a motivator in an employer’s treatment of the employee, even if the jury concludes that an employer was also motivated by lawful considerations. Damages will be awarded unless the employer can prove by a preponderance of the evidence that it would have taken similar actions with regard to a plaintiff even without considering any discriminatory factor. The Costa decision increases the chances of victory for plaintiffs in Title VII cases by permitting a “mixed motive” instruction upon presentation of sufficient evidence for a reasonably jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was one of any number of motivating factors for any employment practice. This evidence can be purely circumstantial.
The plaintiff in Costa, was an employee at Caesar’s Palace Hotel & Casino, where she performed warehouse jobs and functioned as a heavy equipment operator. After a series of conflicts with management and co-workers, which led to discipline and, ultimately, termination, Costa filed a suit in the United States District Court for the District of Nevada, alleging sex discrimination and sexual harassment under Title VII. The sexual harassment claim was dismissed, but the sex discrimination case was presented to a jury, where Costa presented evidence that one of her supervisors targeted her for “intense stalking,’ that although she engaged in the same conduct as her male co-workers she was disciplined more harshly, that males received more favorable overtime benefits and that supervisors permitted or made sex-based slurs about her. The District Court instructed the jury that if it found that Costa’s sex was a motivating factor in her employer’s treatment of her, even if there were also lawful motivations, then the jury must find in favor of the plaintiff. It also instructed that the jury must award damages for Costa unless the jury found that Desert Palace had proven by a preponderance of the evidence that it would have treated Costa the same way even if her gender had not been a consideration. Desert Palace objected to this “mixed motive” instruction based on the fact that Costa had not presented any direct evidence of discrimination. The jury rendered a verdict in favor of Costa.
The Supreme Court’s analysis involved Title VII as amended by the Civil Rights Act of 1991, which created statutory standards for “mixed motive” discrimination cases. The 1991 legislation, as the Supreme Court noted, was in part a response to the Court’s own decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, the plurality opinion concluded that Title VII protects employees from decisions based on even legitimate criteria, when those considerations are mixed with discriminatory considerations, and that an employer found to have engaged in such decisionmaking is absolved of liability for discrimination only if it can show that it would have made the same employment decision based solely on its legitimate reason. In a concurring opinion, Justice O’Connor asserted that a plaintiff must present “direct evidence of discriminatory animus in the [employer’s] decisional process” to be entitled to a “mixed motive” instruction. Many Courts had followed Justice O’Connor’s opinion in this regard.
The 1991 Act provides that a violation of Title VII has occurred when a protected characteristic is a motivating factor in employment practices, even if it is not the only motivation, and permits the recovery of damages unless the employer can prove that it would have taken the same action as to the plaintiff even if it had not considered the impermissible factor. In its first opportunity to discuss the impact of the 1991 Act on jury instructions for Title VII mixed motive cases, the Supreme Court found that the statutory language itself did not require the heightened proof of direct evidence of discrimination, but only that a plaintiff “demonstrate” that an unlawful consideration was a motivating factor in decisionmaking. The Court further found that the term “demonstrate” was defined in the 1991 Act, and did not include any language regarding direct evidence. In contrast, the Court noted, heightened proof requirements in other statutes have been explicitly stated. Finally, the Court asserted, Title VII itself allows a plaintiff to prove a discrimination case by direct or circumstantial evidence. Thus there was no basis on which to limit the “mixed motive” analysis to direct evidence cases.
The Costa decision raises several significant questions with which the lower court will have to wrestle. For example, the “mixed motive” provision in the 1991 Act does not purport to include the Age Discrimination in Employment Act or the Americans with Disabilities Act, and since courts have typically looked to the Price Waterhouse decision – and in particular Justice O’Connor’s concurrence – for guidance in “mixed motive” discrimination cases, it is possible that there are now two standards for “mixed motive” instructions – one applicable to Title VII legislation and one applicable to other anti-discrimination legislation. Similarly, it is not clear whether state courts, including New Jersey’s, will apply Costa to their state discrimination statutes. Finally, the impact of Costa on the traditional McDonnell Douglas burden shifting pretext analysis is unclear. Will an employer have an affirmative defense available in all cases? Will the pretext analysis be effectively mooted by the Costa decision? These questions will no doubt be addressed in future decisions in the state and federal courts, with both employers and employees watching vigilantly.