User:Agradman/disparate

The Supreme Court has ruled that direct evidence is not required for a plaintiff to prove that discrimination was a motivating factor in a "mixed-motive" case, i.e., a case in which an employer had both legitimate and illegitimate reasons for making a job decision. Desert Palace Inc. v. Costa, 539 U.S. 90 (2003). The distinction between “mixed-motive” cases and “pretext” cases is generally determined by whether the plaintiff produces direct rather than circumstantial evidence of discrimination. If the plaintiff produces direct evidence of discrimination, this is sufficient to show that the defendant’s activity was motivated at least in part by animus toward a protected class, and therefore a “mixed-motive” instruction is given. If the evidence of discrimination is only circumstantial, then defendant can argue that there was no animus at all, and that its employment decision can be explained completely by a non-discriminatory motive; it is then for the plaintiff to show that the alleged non-discriminatory motive is a pretext, and accordingly Instruction 5.1.2 should be given. See generally Fakete v. Aetna, Inc., 308 F.3d 335 (3d Cir. 2002) (using “direct evidence” to describe “mixed-motive” cases and noting that pretext cases arise when the plaintiff presents only indirect or circumstantial evidence of discrimination).

On the proper use of mixed-motive instructions, see Matthew Scott and Russell Chapman, Much Ado About Nothing — Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive, 36 St. Mary’s L.J. 395 (2005):


 * Thus, a case properly analyzed under [42 U.S.C.] § 2000e-2(a) (what some commentators refer to as pretext cases) involves the plaintiff alleging an improper motive for the defendant’s conduct, while the defendant disavows that motive and professes only a non-discriminatory motive. On the other hand, a true mixed motive case under [42 U.S.C.] § 2000e-2(m) involves either a defendant who . . . admits to a partially discriminatory reason for its actions, while also claiming it would have taken the same action were it not for the illegitimate rationale or . . . [there is] otherwise credible evidence to support such a finding.


 * The rationale for the distinction . . . is simple. When the defendant renounces any illegal motive, it puts the plaintiff to a higher standard of proof that the challenged employment action was taken because of the plaintiff’s race/color/religion/sex/national origin. But, the plaintiff, if successful, is entitled to the full panoply of damages under § 2000e-5. . ..


 * At the same time, where the defendant is contrite and admits an improper motive (something no jury will take lightly), or there is evidence to support such a finding, the defendant’s liability risk is reduced to declaratory relief, attorneys’ fees and costs if the defendant proves it would have taken the same action even without considering the protected trait. The quid pro quo for this reduced financial risk is the lesser standard of liability (the challenged employment action need only be a motivating factor).

Distinction Between Disparate Impact and Disparate Treatment; Elements of Disparate Treatment Claim
A violation of Title VII can be shown in two separate and distinct ways. See generally Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988). First, a Title VII plaintiff can utilize the disparate impact theory of discrimination. A disparate impact violation is made out when an employer is shown to have used a specific employment practice, neutral on its face but causing a substantial adverse impact on a protected group, and which cannot be justified as serving a legitimate business goal of the employer. See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989) (like the analytical proof structure under the disparate treatment theory, the burden of showing disparate impact always remains with the plaintiff and the employer has only the burden of production, on the issue of business justification, once a prima facie case has been established). No proof of intentional discrimination is necessary.

Alternatively, the Title VII plaintiff can argue a disparate treatment theory of discrimination. . . . A disparate treatment violation is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under Title VII. Unlike the disparate impact theory, proof of the employer's discriminatory motive is critical under this analysis.

Discriminatory intent can either be shown by direct evidence, or through indirect or circumstantial evidence. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

If discriminatory intent is shown indirectly, the burden of production can be shifted to the employer once the plaintiff establishes a prima facie case of discrimination. The employer's burden is to articulate a legitimate, nondiscriminatory reason for the adverse action. However, the ultimate burden of persuasion on the issue of intent remains with the Title VII plaintiff. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In the seminal case of McDonnell Douglas, the Supreme Court set forth the by now quite familiar four-prong test for what constitutes a prima facie case.:

(i) that [the complainant] belongs to a racial minority; (ii) that [the complainant] applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [the complainant's] qualifications, [the complainant] was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

However, the Court cautioned that the "facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from [the complainant] is not necessarily applicable in every respect to differing factual situations." McDonnell Douglas, 411 U.S. at 802 n. 13. Since McDonnell Douglas, the Supreme Court has held consistently that the McDonnell Douglas test forms one model of a prima facie case, not an invariable scheme. This court has noted similarly that the McDonnell Douglas prima facie test should not be viewed as a rigid formula and the elements enumerated in McDonnell Douglas need not be present in every Title VII case. Kunda v. Muhlenberg College, 621 F.2d 532, 542 (3d Cir. 1980) ("of necessity this cannot be an inflexible rule")

Thus, since the importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act, courts need not, and should not, stubbornly analyze all Title VII factual scenarios through the McDonnell Douglas formula. Instead, courts must be sensitive to the myriad of ways such an inference can be created. Simply stated, a Title VII plaintiff has established a prima facie case when sufficient evidence is offered such that the court can infer that if the employer's actions remain unexplained, it is more likely than not that such actions were based on impermissible reasons.

“Same Decision” Affirmative Defense in Mixed-Motive Cases
Where the plaintiff has shown intentional discrimination in a mixed motive case, the defendant can still avoid liability for money damages by demonstrating by a preponderance of the evidence that the same decision would have been made even in the absence of the impermissible motivating factor. If the defendant establishes this defense, the plaintiff is then entitled only to declaratory and injunctive relief, attorney’s fees and costs. Orders of reinstatement, as well as thesubstitutes of back and front pay, are prohibited if a same decision defense is proven. 42 U.S.C. §2000e-(5)(g)(2)(B).

Source

 * Adapted from a public domain source,