In the five years since the United States Supreme Court's decision in Desert Palace v. Costa settled a then-existing split among the federal courts of appeals by establishing that a Title VII mixed-motive plaintiff could prove his case utilizing both direct and circumstantial evidence, a new debate regarding the analysis of mixed-motive cases has arisen in the federal circuits and is ripe for review by the nation's highest court. Today, the standards under which mixed-motive cases are evaluated at the summary judgment stage of litigation vary widely from circuit to circuit, providing litigants with little consistency or certainty. In fact, only one thing is certain - a clear and uniform standard is needed.
Statutory And Judicial History
Title VII, enacted in 1964, makes it unlawful for an employer to discriminate against individuals with respect to the terms and conditions of their employment because of their race, color, religion, sex, or national origin. Claims made pursuant to Title VII are typically categorized as either single-motive claims (where an impermissible rationale motivated an employment decision) or mixed-motive claims (where both permissible and impermissible reasons motivated an employment decision), a distinction first recognized by the United States Supreme Court in 1989 in Price Waterhouse v. Hopkins. In Price Waterhouse , a divided Court held that while Title VII prohibits employers from taking protected characteristics into account when making employment decisions, an employer could avoid liability if it could prove that it would have made the same decision even if it had not considered a protected characteristic. In response to Price Waterhouse, Congress enacted the Civil Rights Act of 1991, which expressly provides that "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 employment practice, even though other factors also motivated the practice." The Act effectively precludes employers from avoiding liability by proving that they would have made the same decisions even in the absence of any discriminatory motivation. 42 U.S.C. 2000e-2(m).
In the years following the enactment of the Civil Rights Act of 1991, many federal courts required mixed-motive plaintiffs to prove their claims using direct evidence. Accordingly, federal courts did not analyze mixed-motive cases under the traditional three-part burden-shifting framework first established by the Supreme Court in McDonnell Douglas Corp. v. Green - a framework for determining whether claims by single -motive plaintiffs should reach a jury when premised only on circumstantial evidence.
Since the Supreme Court's 2003 decision in Desert Palace , however, which expressly permits a mixed-motive Title VII plaintiff to prove his case utilizing circumstantial evidence, federal courts have been faced with the difficult task of deciding whether to employ the familiar McDonnell Douglas burden-shifting framework at the summary judgment stage of mixed-motive cases based on circumstantial evidence. In the absence of any guidance from the Supreme Court on the issue, the federal courts of appeals have been left to their own devices and, not surprisingly, have developed widely varying methods of determining whether summary judgment is appropriate in mixed-motive cases. Ranging from the express acceptance of the McDonnell Douglas framework to the outright rejection of it, with a variety of versions in between, the federal circuit courts have been consistent in their inconsistency. To date, nine circuits have weighed in, two of them issuing decisions this past summer - one from the Third Circuit in July and another from the Sixth Circuit in August. The following presents a brief overview of the various standards being utilized in the circuit courts today.
The McDonnell Douglas Framework - A Refresher
When the Supreme Court rendered its McDonnell Douglas decision in 1973, it established the principal framework for analyzing Title VII employment discrimination claims premised on circumstantial evidence. Under this 25-year-old framework, subsequently modified by Texas Department of Community Affairs v. Burdine in 1981, a plaintiff must first establish a prima facie case of discrimination. If a plaintiff successfully does so, an inference of discrimination arises and the burden shifts to the defendant employer to articulate a legitimate non-discriminatory reason for taking the adverse employment action. If the employer does so, the inference of discrimination drops and the burden shifts back to the plaintiff to show that the reason advanced is merely pretext for intentional discrimination.
Circuits Adopting The McDonnell Douglas Framework
After Desert Palace, at least one circuit court of appeals has expressly held that the McDonnell Douglas framework applies at the summary judgment stage of mixed-motive cases. In Griffith v. City of Des Moines , the Eighth Circuit concluded that " Desert Palace had no impact on prior Eighth Circuit summary judgment decisions." 387 F.3d 733, 736 (8th Cir. 2004). While it has not expressly stated as much, the Eleventh Circuit seemingly shares in this view. Cooper v. Southern Co. , 390 F.3d 695, 725 n. 17 (11th Cir. 2004).
Circuits Rejecting The McDonnell Douglas Framework
In the aftermath of Desert Palace, at least one circuit court of appeals has expressly rejected the application of the McDonnell Douglas framework, while another circuit has suggested that rejection is appropriate. Just this year, the Sixth Circuit held that the burden-shifting framework applied to single-motive Title VII discrimination cases does not apply to the summary judgment analysis of mixed-motive Title VII claims. Following a review of the varying approaches employed by the different circuit courts, the Sixth Circuit, in White v. Baxter Healthcare Corp., adopted its own analysis for mixed-motive claims. Under the test devised by the Sixth Circuit, to survive summary judgment a mixed-motive plaintiff need only produce evidence sufficient to convince a jury that the employer took an adverse employment action and that race, color, religion, sex or national origin was a motivating factor for the employer's action. The Sixth Circuit reasoned that in deciding whether an employer intentionally discriminated against a plaintiff, the McDonnell Douglas burden-shifting framework focuses on the single, ultimate reason for the adverse action. While this information is of utmost importance in single-motive Title VII cases, it has little significance in mixed-motive cases, where a plaintiff need not rebut all possible legitimate motivations of the employer, so long as he can demonstrate that discriminatory animus played a role in the employer's decision.
Just one month after the Sixth Circuit's decision in White, the Third Circuit issued its own decision in Makky v. Chertoff. While the Third Circuit stopped short of expressly rejecting application of the McDonnell Douglas framework in mixed-motive cases, the court stated that the traditional framework "does not apply in a mixed-motive case in the way it does in a pretext case because the issue in a mixed-motive case is not whether discrimination played the dispositive role but merely whether it played 'a motivating part' in an employment decision." The Third Circuit, however, did not ultimately address whether each element of the McDonnell Douglas analysis must be satisfied, as the only issue before it was whether or not a Title VII plaintiff pursuing a mixed-motive theory of discrimination must demonstrate his or her objective qualification for the job at issue. The court answered this limited inquiry in the affirmative, holding that a mixed-motive plaintiff fails to establish a prima facie case of Title VII discrimination if unchallenged objective evidence exists that he or she did not meet minimal qualifications for the job.
Circuits Modifying The McDonnell Douglas Framework
Following Desert Palace, a number of federal courts of appeals have found middle ground and have not expressly adopted or rejected the McDonnell Douglas framework.
The Fourth, Ninth and D.C. Circuit Courts of Appeals provide a mixed-motive plaintiff with a choice of summary judgment standards. Under the approach adopted by the Fourth, Ninth and D.C. Circuits in Diamond v. Colonial Life & Accident Insurance Co. , McGinest v. GTE Service Corp., and Fogg v. Gonzales , respectively, a mixed-motive plaintiff is presented with "two avenues of proof" and, accordingly, may proceed under the traditional McDonnell Douglas framework or, in the alternative, by presenting direct or circumstantial evidence which demonstrates that a discriminatory reason more likely than not motivated the employment decision.
The Fifth Circuit, while not expressly giving a mixed-motive plaintiff the option of rejecting the McDonnell Douglas framework, still permits him to avoid summary judgment with something other than evidence of pretext. In both Machinchick v. PB Power, Inc. and Rachid v. Jack in the Box, the Fifth Circuit adapted the third step of the McDonnell Douglas framework, giving a mixed-motive plaintiff a choice in how to overcome the employer's articulation of a legitimate non-discriminatory reason for the adverse employment action at issue. Under this modified framework, which leaves the first two steps of the customary burden-shifting framework intact, a plaintiff can satisfy the third step and rebut the employer's legitimate non-discriminatory reason either with traditional evidence of pretext or, in the alternative, with proof that the legitimate non-discriminatory reason advanced by the employer is merely one of the reasons for the adverse employment action.
Circuits Remaining Undecided
The First and Tenth Circuits have not decided whether the McDonnell Douglas burden-shifting framework applies to a mixed-motive plaintiff, finding it unnecessary in light of other issues such as procedural deficiencies and evidentiary shortcomings in the relevant cases. And, as of today, the Second and Seventh Circuits remain mere bystanders, having not yet considered the issue.
As evidenced by the conflict among the circuit courts of appeals regarding the correct means by which to analyze the appropriateness of summary judgment in mixed-motive cases premised on circumstantial evidence, true resolution can only be achieved by the Supreme Court. Given the recent decisions by the Sixth and Third Circuits, there is no better time for the Supreme Court to tackle this discord and establish a clear framework under which litigants and the courts can analyze these claims.
Susan L. Nardone is a Director, and Carla N. Dorsi is an Associate, in the Employment Law Department of Gibbons P.C.