Lexicon, Mixed Motive

By Tenechia Lockhart

Mixed motive discrimination refers to action taken by an employer against an employee where the action is motivated by some discriminatory, illegitimate reason as well as a legitimate business reason. Mixed motive discrimination was articulated by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

In Price Waterhouse the plaintiff argued that her promotion for partnership was postponed because of sex stereotyping. There was evidence that legitimate reasons also may have motivated the employer’s decision. The plurality held that when a plaintiff-employee demonstrated that a discriminatory reason, such as sex, acted as a motivating factor in an employment decision, the burden then shifts to the defendant-employer to demonstrate that it would have made the same decision even if it had not taken the discriminatory reason into account.

The plurality decision drew only four votes. Justice O’Connor’s concurrence potentially limited the plurality’s holding. She opined that the employee had to produce direct evidence that an illegitimate reason was a motivating factor for the employment action to be able to invoke a mixed-motive framework for her claim.

The 1991 Amendments to the Civil Rights Act codified the concept of mixed motive. The language of the statute reads as follows:

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). In Price Waterhouse, the Court held that if the employer proved the same decision defense, then it would completely escape liability. However, when Congress amended Title VII, it changed the effect of the employer’s proof. If an employer proves it would have made the same decision absent the protected trait, it is entitled to a partial defense to damages. 42 U.S.C. § 2000e-5(g)(2)(B). Proof of the defense does not absolve the employer of all liability.

In Desert Palace, Inc. v. Costa, 539 US. 90 (2003), the Supreme Court addressed the question raised by Justice O’Connor’s concurrence about whether direct evidence is needed to proceed on a mixed motive theory under Title VII. It held that direct evidence is not needed for a plaintiff to prevail in a Title VII mixed motive case.

One note of caution about the mixed-motive theory. In both the ADEA and retaliation contexts, the Supreme Court has required the plaintiff to establish that a protected trait was a “but for” cause of an adverse action. Questions remain about whether the mixed motive idea can be used under other statutes.

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