Desert Palace, Inc. v. Costa

16 Fla. L. Weekly Fed. S 335, 123 S. Ct. 2148, 156 L. Ed. 2d 84, 539 U.S. 90, 2003 Cal. Daily Op. Serv. 4839, 71 U.S.L.W. 4434, 84 Empl. Prac. Dec. (CCH) 41,403, 91 Fair Empl. Prac. Cas. (BNA) 1569, 2003 U.S. LEXIS 4422, 2003 Daily Journal DAR 6128, 61 Fed. R. Serv. 708
Supreme Court of the United States·Decided June 9, 2003·No. 02-679·Published·Cited by 1,549 cases

Opinions

Justice Thomas

delivered the opinion of the Court.

The question before us in this case is whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (1991 Act). We hold that direct evidence is not required.

I

A

Since 1964, Title VII has made it an “unlawful employment practice for an employer... to discriminate against any indi[93] vidual. . . , because of such individual’s race, color, religion, sex, or national origin.” 78 Stat. 255, 42 U. S. C. §2000e-2(a)(1) (emphasis added). In Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), the Court considered whether an employment decision is made “because of” sex in a “mixed-motive” case, i. e., where both legitimate and illegitimate reasons motivated the decision. The Court concluded that, under §2000e-2(a)(l), an employer could “avoid a finding of liability ... by proving that it would have made the same decision even if it had not allowed gender to play such a role.” Id., at 244; see id., at 261, n. (White, J., concurring in judgment); id., at 261 (O’Connor, J., concurring in judgment). The Court was divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense.

Justice Brennan, writing for a plurality of four Justices, would have held that “when a plaintiff . . . proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.” Id., at 258 (emphasis added). The plurality did not, however, “suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision.” Id., at 251-252.

Justice White and Justice O’Connor both concurred in the judgment. Justice White would have held that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), and would have shifted the burden to the employer only when a plaintiff “show[ed] that the unlawful motive was a substantial factor in the adverse employment action.” Price Waterhouse, supra, at 259. Justice O’Con-nor, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a “substantial factor” in the employment decision. 490 U. S., at 276. But, under Justice O’Connor’s view, “the burden on the issue [94] of causation” would shift to the employer only where “a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision.” Ibid. (emphasis added).

Two years after Price Waterhouse, Congress passed the 1991 Act “in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964.” Landgraf v. USI Film Products, 511 U. S. 244, 250 (1994). In particular, § 107 of the 1991 Act, which is at issue in this case, “responded]” to Price Waterhouse by “setting forth standards applicable in ‘mixed motive’ cases” in two new statutory provisions.1 511 U. S., at 251. The first establishes an alternative for proving that an “unlawful employment practice” has occurred:

“Except as otherwise provided in this subchapter, 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.” 42 U. S. C. §2000e-2(m).

The second provides that, with respect to “a claim in which an individual proves a violation under section 2000e-2(m),” the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney’s fees and costs. § 2000e-5(g)(2)(B).2 In order to avail itself of [95] the affirmative defense, the employer must “demonstrate] that [it] would have taken the same action in the absence of the impermissible motivating factor.” Ibid.

Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a “motivating factor” in an adverse employment action. See 42 U. S. C. § 2000e-2(m). Relying primarily on Justice O’Con-nor’s concurrence in Price Waterhouse, a number of courts have held that direct evidence is required to establish liability under § 20Q0e-2(m). See, e. g., Mohr v. Dustrol, Inc., 306 F. 3d 636, 640-641 (CA8 2002); Fernandes v. Costa Bros. Masonry, Inc., 199 F. 3d 572, 580 (CA1 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F. 3d 1449, 1453-1454 (CA11 1996); Fuller v. Phipps, 67 F. 3d 1137, 1142 (CA4 1995). In the decision below, however, the Ninth Circuit concluded otherwise. See infra, at 97-98.

B

Petitioner Desert Palace, Inc., dba Caesar’s Palace Hotel & Casino of Las Vegas, Nevada, employed respondent Catha-rina Costa as a warehouse worker and heavy equipment operator. Respondent was the only woman in this job and in her local Teamsters bargaining unit.

Respondent experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Petitioner finally terminated respondent after she was involved in a physical altercation in a warehouse elevator with fellow Teamsters member Herbert Gerber. Petitioner disciplined both employees because the facts surrounding the incident were in dispute, but [96] Gerber, who had a clean disciplinary record, received only a 5-day suspension.

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Desert Palace, Inc. v. Costa, 16 Fla. L. Weekly Fed. S 335, 123 S. Ct. 2148, 156 L. Ed. 2d 84, 539 U.S. 90, 2003 Cal. Daily Op. Serv. 4839, 71 U.S.L.W. 4434, 84 Empl. Prac. Dec. (CCH) 41,403, 91 Fair Empl. Prac. Cas. (BNA) 1569, 2003 U.S. LEXIS 4422, 2003 Daily Journal DAR 6128, 61 Fed. R. Serv. 708 (U.S. 2003).

16 Fla. L. Weekly Fed. S 335 (Desert Palace, Inc. v. Costa) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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