By Tenechia Lockhart
In employment discrimination cases, a plaintiff may produce direct or circumstantial evidence of discrimination to support her claim. Although the Federal Rules of Evidence do not make a distinction between these two types of evidence, the distinction between direct and circumstantial evidence is important in some discrimination cases. The concept of direct evidence of discrimination emerged after Justice O’Connor’s concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Justice O’Connor opined that in order for a plaintiff to prevail in a mixed-motive discrimination case she must produce direct evidence.
But what is direct evidence of discrimination? The federal courts have struggled with both defining and identifying direct evidence of discrimination. So much so that the Seventh Circuit has stated that “[c]ourts have noted the difficulty of defining direct evidence for discrimination claims. . . [and] [o]ur own statements on what constitutes direct evidence are not in complete harmony.” Sanghvi v. St. Catherine’s Hosp., Inc., 258 F.3d 570, 574 (7th Cir. 2001) (noting the lack of consensus within the Seventh Circuit, alone.) The Eleventh Circuit has described direct evidence of discrimination as “evidence, that, if believed, proves the existence of a fact in issue without inference or presumption . . . [and] is composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999). Whereas the First Circuit defined direct evidence of discrimination as evidence “which, in and of itself, shows a discriminatory animus.” Jackson v. Harvard University, 900 F.2d 464, 464 (1st Cir. 1990). However, direct evidence of discrimination is not “stray remarks in the workplace . . . statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself.” Price Waterhouse, 490 U.S. at 277 (O’Connor, J. concurring).
Take these facts for example. A male supervisor, John tells an employee, Alice, that she should not apply for a promotion because she recently had a child and would never be qualified for the time-consuming position. Ignoring John’s comment, Alice applies for the position and interviews before a three-member panel. John is not on the panel. Alice is not hired for the position and sues. Is John’s comment direct evidence of discrimination? It is unclear how a court would answer this question, although courts are generally reluctant to determine that a plaintiff has direct evidence of discrimination.
The choice of whether this is direct or circumstantial evidence is important, at least in single-motive cases. At summary judgment, a court will choose a framework through which to analyze the case. If a plaintiff has direct evidence, the court will simply ask whether a material question of fact exists about whether the employer took an action because of a protected trait. In most circuits, if a plaintiff alleges a single-motive case and has circumstantial evidence, the court will funnel the facts of her case through a McDonnell-Douglas analysis. The Seventh Circuit has created a test that allows a plaintiff to proceed through the direct framework if she has direct evidence or a convincing mosaic of circumstantial evidence.
The direct/circumstantial dichotomy is less important in mixed-motive cases. The Supreme Court held in Desert Palace v. Costa that courts should analyze motivating factor cases through the same test, whether the plaintiff had direct or circumstantial evidence. The Court’s holding in Desert Palace raises substantial questions about why the direct/circumstantial divide continues to exist in so-called single-motive cases.