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Offices of Phillip J. Griego & Associates Law
Offices of Phillip J. Griego & Associates On August 5, 2002, the court of appeals for the Ninth Circuit issued its decision in Costa v. Desert Palace Inc., 02 C.D.O.S. 6959. The case discusses the legal standard for proof of a violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. The court confirmed that Title VII "imposes no special or heightened evidentiary burden on a plaintiff in a so-called 'mixed-motive' case" and went through a detailed analysis of how the 1991 amendments to the anti-discrimination statute effects, or does not effect, the plaintiff's burden of proof.
Catharina Costa worked in the male-dominated environment of heavy equipment operation. At Caesars, Ms. Costa was the only woman working in the warehouse operating forklifts and pallet jacks. Costa's supervisors and co-workers commended her abilities and her work ethics. Despite Costa's excellent credentials and abilities, in a series of escalating events she was subjected to informal rebukes, denial of privileges accorded her male coworkers, suspension and finally termination. Costa's efforts to resolve the problems were thwarted by management and ignored by human resources. Costa brought suit against Desert Palace, dba Caesar's Palace Hotels, alleging discrimination on the basis of gender. The employer contended it terminated Ms. Costa because of her disciplinary history and because of an altercation with a co-worker. The jury found in favor of Costa and awarded her $64,377.74 in back pay, $200,000.00 compensatory damages, and $100,000.00 punitive damages.
The Ninth Circuit first discussed the statutory framework and development of Title VII. "Title VII prohibits discrimination 'because of' a protected characteristic, such as race or sex. Such discrimination is deemed 'an unlawful employment practice.'" An amendment in 1991 to Title VII (42 U.S.C. §2000e-2(m)) provides that "an unlawful employment practice is established" when a protected characteristic is a "motivating factor" in an employment action. The same amendment provided an affirmative defense that limits the remedies if an employer demonstrates that it would have made the same decision absent the discriminatory motive. 42 U.S.C. §2000e-5(g)(2)(B). In this type of "mixed-motive" case, an employer cannot avoid liability altogether, but instead may assert an affirmative defense to bar certain types of relief by showing the plaintiff's injuries would have resulted even in the absence of discrimination.
The court explained that the 1991 amendments resulted from the US Supreme Court's decision in Price Waterhouse v. Hopkins, 490 US 228 (1998). In Price Waterhouse, the Supreme Court confronted a case where the employer proved it would have terminated the employee even absent the discriminatory motive. All nine justices essentially agreed that liability was inappropriate where the employer would have made the same decision absent sex discrimination, but they divided on the nuances of the burden of proof.
Attorneys and courts debated and disagreed regarding the proper evidence necessary to meet the employee's burden of proof in light of Price Waterhouse. To quote Costa, "the resulting jurisprudence has been a quagmire that defies characterization despite the valiant efforts of various courts and commentators. Within circuits, and often within opinions, different approaches are conflated, mixing burden of persuasion with evidentiary standards, confusing burden of ultimate persuasion with the burden to establish an affirmative defense, and declining to acknowledge the role of circumstantial evidence."
The Ninth Circuit opined that the language of the statute itself shows Congress did not impose any special or heightened evidentiary burdens on the plaintiff in a Title VII case in which discriminatory animus may have constituted one of two or more reasons for the employer's challenged actions. 42 U.S.C. §2000e-2(m). The court determined this approach is consistent with the legislative text, the history of the statute, and recent Supreme Court decisions underscoring that no special pleading or proof hurdles can be imposed upon Title VII plaintiffs. See, e.g., Swierkiewicz v. Sorema N.A. 122 S.Ct. 992, 997-99 (2002) and Reeves v.Sanderson Plumbing 530 US 133, 148 (2000).
The Ninth Circuit then went on to discuss the framework for proving a Title VII Violation. The court explained when the McDonnell-Douglas burden shifting analysis is appropriate, when the single-motive or the mixed-motive theories apply:
The McDonnell-Douglas burden shifting analysis is one way to prove discrimination when direct evidence of discrimination is not available. It is not necessary to go through the McDonnell-Douglas burden shifting when there is direct evidence of discrimination.
The McDonnell-Douglas burden shifting is only appropriate in a motion for summary judgment. It should not be given to the jury.
Parties do not have to use to McDonnell-Douglas burden shifting. Its only purpose is to set up a guideline for one way to prove discrimination. There may be other ways to establish discrimination in the absence of direct evidence.
Cases do not have to be labeled "mixed-motive" or "single motive" at the outset of the case. In fact, "the shape will often emerge after discovery or even at trial."
If the trial court determines that the only reasonable conclusion a jury could reach is that discriminatory animus is the sole reason for the challenged adverse action or that discrimination played no role in the employer's decisionmaking, then the jury should be instructed to determine whether the adverse action was taken "because of" the prohibited reason.
If the court determines that the evidence could support a finding that discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate, the jury should be instructed to determine first whether the discriminatory reason was a "motivating factor" in the challenged action. If the jury's answer to this question is "yes," then the employer has violated Title VII. However, if the jury then finds that the employer has proved, by a preponderance of the evidence, that it would have taken the same action absent the discriminatory motive, the employer will escape the imposition of damages and any order of reinstatement, hiring, promotion and the like and is liable solely for attorney's fees, declaratory relief, and an order prohibiting future discriminatory actions.
Regardless of the instruction or the type of case, the employee's ultimate burden of proof remains the same: to show by a preponderance of the evidence that the challenged employment decision was "because of" discrimination.
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