stray remarks and mixed-motive cases after desert palace v. costa

GREENBERG.FINAL.VERSION 3/26/2008 5:44:56 PM

STRAY REMARKS AND MIXED-MOTIVE CASES

AFTER DESERT PALACE V. COSTA : A PROXIMITY

TEST FOR DETERMINING MINIMAL CAUSATION

Ezra S. Greenberg *

I NTRODUCTION

Employment discrimination statutes prevent the use of prohibited criteria—such as race, sex, or religion—in employment decisions, while otherwise maintaining an employer’s right to discharge an at-will employee without cause.

1 An employment decision, such as firing, transferring, or refusing to promote an employee, is only unlawful when the employer’s reason for making the decision is the employee’s race, sex, religion, etc. An employee who brings a lawsuit alleging

* Articles Editor, Cardozo Law Review . J.D. Candidate (2008), Benjamin N. Cardozo

School of Law; B.A., History, Emory University, 2004. I thank my parents for providing me with an education and my grandparents for their pride and love; Professor Arthur Jacobson for introducing me to employment law and critiquing this Note; and Professors Michael Zimmer

(Seaton Hall) and Martin Katz (University of Denver) for their gracious correspondence.

1 This was the starting point of Justice Brennan’s analysis in Price Waterhouse v. Hopkins ,

490 U.S. 228, 239 (1989) (“Title VII eliminates certain bases for distinguishing among employees while otherwise preserving employers’ freedom of choice. This balance between employee rights and employer prerogatives turns out to be decisive . . . .”). A draft version of

Title VII would have forbidden relief if an employment action adverse to the employee was made

“for cause.” Id.

at 239 n.4. This formulation was replaced with “for any reason other than

[discrimination].” Id.

; see also Jalal v. Columbia Univ., 4 F. Supp. 2d 224, 226 (S.D.N.Y. 1998)

(“Unearthing invidious discrimination in the workplace . . . without abridging an employer’s right to make its own employment decisions or deterring debate on controversial subjects often requires courts and juries to make extremely careful judgments.”).

An at-will employment relationship is one that can be “terminated or discharged by either party without cause.” B LACK ’ S L AW D ICTIONARY 566 (8th ed. 2004). At-will employment is the common law or statutory presumption in 49 states. 10-259 P ETER O.

H UGHES , L ABOR AND

E MPLOYMENT L AW § 259.02; see, e.g.

, Martin v. New York Life Ins. Co., 42 N.E. 416, 417

(N.Y. 1895) (“[A] general or indefinite hiring is, prima facie, a hiring at will . . . .”); C AL .

L AB .

C ODE § 2922 (West 2007) (“An employment, having no specified term, may be terminated at the will of either party on notice to the other.”). In Montana the Wrongful Discharge from

Employment Act requires employers to show “good cause” unless the discharge takes place during the employee’s probationary period. M ONT .

C ODE A NN . § 39-2-904 (2005).

Antidiscrimination statutes are an exception to the rule of at-will employment. See, e.g.

,

Pivirotto v. Innovative Sys., 191 F.3d 344, 350 n.2 (3d Cir. 1999) (upholding a jury instruction in a Title VII gender discrimination case that the plaintiff was an at-will employee who could be terminated “for any reason, good or bad . . . or no reason at all” so long as the reason was not discriminatory).

1795


1796 C A R D O Z O L A W R E V I E W [Vol. employment discrimination is therefore put in the difficult position of proving his employer’s state of mind.

2 Oftentimes an ambiguous remark touching on the employee’s protected status becomes the focus of litigation. Does the remark in question reasonably indicate the employer’s intention to discriminate? Or is the remark too tenuous and unrelated to the decisional process to support a finding of discrimination?

3

Employees usually claim that any reference to their protected status by their employers constitutes “direct evidence”

4

of discrimination, a finding which entitles them to a jury trial. Employers, by contrast, argue that such comments are mere “stray remarks,” comments which shed no light on the employer’s true motives, and therefore cannot support an employment discrimination claim without additional evidence.

This is the classic dispute over stray remarks: When comments referencing an employee’s protected status form an essential part of the employee’s case in an employment discrimination lawsuit, dismissing them as mere stray remarks may allow an employer to discriminate with impunity. On the other hand, predicating liability on stray remarks may do nothing more than punish an employer for “bad thoughts” that did not actually contribute to the contested employment decision.

5

The problem of stray remarks is most acute in so-called “mixedmotive” cases, where “the complained-of employment action [is] based in part on a nondiscriminatory reason and in part on a discriminatory reason.” 6 This is because an employee will often resort to a mixed-

2 Thus, in order to succeed in an employment discrimination claim, an employee must prove the existence of (1) an adverse employment practice and (2) the employer’s intent to discriminate on the basis of a protected classification. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct.

2162, 2171 (2007). The Supreme Court has described “discriminatory intent” as the “central element” of a disparate treatment (i.e., intentional discrimination) claim .

Id. at 2168. This Note does not address disparate impact claims, where the employer’s specific intent to discriminate is not an element of the claim. See generally Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)

(allowing employees to bring certain claims alleging a discriminatory impact without proving discriminatory intent).

3 This Note uses the term “discrimination” in its pejorative, non-neutral sense, as the use of illegal criteria in an employment decision. See B LACK ’ S L AW D ICTIONARY 500 (8th ed. 2004).

4

According to Black’s Law Dictionary , direct evidence “is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.” B LACK ’ S L AW

D ICTIONARY 596 (8th ed. 2004). However in the context of employment discrimination direct evidence is a contested and ambiguous term treated at length in this Note. See discussion infra

Part III. See Michael A. Zubrensky, Despite the Smoke, There Is No Gun: Direct Evidence

Requirements in Mixed-Motives Employment Law After Price Waterhouse v. Hopkins, 46 S TAN .

L.

R EV . 959, 970-80 (1994) for a description of the direct evidence standards that prevailed in the aftermath of Price Waterhouse and the Civil Rights Act of 1991.

5 See infra note 44, discussing the problem of punishing “bad thoughts.”

6 B LACK ’ S L AW D ICTIONARY 1024 (8th ed. 2004). This Note explains in Part IV.A. why the stray comments are a problem in the mixed-motive context but not in employment discrimination cases generally.


2008] S T R A Y R E M A R K S 1797 motive theory when he or she is unable to discredit the employer’s proffered nondiscriminatory reasons for the contested employment action. A decision to base an employer’s liability on a few isolated comments about the employee’s protected class is more problematic in cases where the employer has a credible nondiscriminatory reason to explain the adverse action taken against the employee than it is in cases where the employee discredits the employer’s proffered nondiscriminatory justification. For in the former case, it is possible that nondiscriminatory reasons were responsible for the employment decision, and it would be inappropriate to allow a remark that lacks a causal connection to the employment decision at issue to serve as a basis for liability.

7 But in the latter case, when the factfinder does not accept the employer’s proffered reason for the adverse employment action, the employer’s freedom to make legitimate business choices is no longer at risk because the factfinder has determined that the employer’s alleged business rational is a smokescreen for discrimination.

The distinction between “direct evidence” and “stray remarks” arose out of Justice O’Connor’s concurring opinion in Price

Waterhouse v. Hopkins .

8 Lower courts held that Justice O’Connor’s concurring opinion, which required that the employee adduce “direct evidence” of discrimination in mixed-motive cases, is the controlling

9 opinion in Price Waterhouse .

However, the Supreme Court’s 2003 decision in Desert Palace v. Costa 10 overruled the “direct evidence” requirement and opened the door to new and untested theories for evaluating the sufficiency of the employee’s evidence in mixed-motive discrimination claims.

11

In Desert Palace , the Supreme Court unanimously held that the

Civil Rights Act of 1991 12 (1991 Act), which incorporated the standard of liability from Price Waterhouse without reference to “direct evidence,” abrogated the “direct evidence” requirement in mixed-

7 A good example of this scenario was found in Quick v. Wal-Mart Stores, Inc.

, 441 F.3d

606, 608 (8th Cir. 2006), a pregnancy discrimination case, where the plaintiff’s superior told her that “it was not ‘good management sense’ to take twelve weeks of maternity leave.” The plaintiff was fired five months later, after her maternity leave had expired, because she had admittedly violated company policy by extending discounts to customers that Wal-Mart did not permit. The

Eighth Circuit affirmed the grant of summary judgment for Wal-Mart because there was no evidence of a causal link between the supervisor’s comments and the decision to terminate the plaintiff. Id. at 609.

8 490 U.S. 228, 261 (1989) (distinguishing between direct evidence of discrimination and stray remarks).

9 See infra notes 48-49 and accompanying text.

10 539 U.S. 90 (2003).

11 See infra notes 163-164.

12 Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. The 1991 Act amended

Title VII of the Civil Rights Act of 1964. Pub. L. No. 88-352, 78 Stat. 241.


1798 C A R D O Z O L A W R E V I E W [Vol. motive cases created by Justice O’Connor’s opinion.

13 Most courts have confined the holding of Desert Palace to cases brought under Title

VII, thereby maintaining the “direct evidence” requirement for mixedmotive claims brought under other employment discrimination statutes such as the Age Discrimination in Employment Act 14 (ADEA) and the

Americans with Disabilities Act 15 (ADA).

16

But far from serving as a supposed bright line that delineates mixed-motive cases from run-of-the-mill discrimination claims, “direct evidence” is a term of contention, heavily criticized by scholars, 17 mired

13 Desert Palace, Inc., v. Costa, 539 U.S. 90 (2003).

14 29 U.S.C. § 621 et seq.

(2000).

15 42 U.S.C. § 12101 et seq.

(2000).

16 The Fifth Circuit, noting that the ADEA was modeled word for word on Title VII, has applied Desert Palace to ADEA claims, Rachid v. Jack in the Box, Inc., 376 F.3d 305, 311 (5th

Cir. 2004) (holding that “direct evidence of discrimination is not necessary for a mixed-motives analysis under the ADEA”), and retaliation claims under the Family Medical Leave Act.

Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333-34 (5th Cir. 2005). The Ninth Circuit has noted that Desert Palace obviates the need for “direct evidence” in mixed-motive retaliation cases brought under Title VII. Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d 1117, 1123 n.4 (9th

Cir. 2004). Most courts, however, are unwilling to apply Desert Palace outside of Title VII because its holding was based on amendments made to Title VII alone. See Glanzman v. Metro.

Mgmt. Corp., 391 F.3d 506, 512 n.3 (3d Cir. 2004) (rejecting application of Desert Palace to

ADEA because the “Civil Rights Act of 1991 does not apply to ADEA cases”); Mereish v.

Walker, 359 F.3d 330, 340 (4th Cir. 2004) (“[M]aintaining the higher evidentiary burden . . . for

ADEA claims is not implausible, given that age is often correlated with perfectly legitimate, nondiscriminatory employment decisions.”); Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir.

2004) (“[T]he Desert Palace holding was expressly limited to the context of mixed-motive discrimination cases under [the 1991 Act].”); cf.

McNutt v. Bd. of Trustees, 141 F.3d 706, 709

(7th Cir. 1998) (“Legislation is often the product of compromises that are not readily apparent to the public or even consistent . . . . It is not the role of courts to question these kinds of seemingly inexplicable legislative choices where they are spelled out in plain statutory language . . . .”). See also Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in

Disparate Treatment Law , 94 G EO .

L.J. 489, 538 n.184 (2006) (discussing whether Congress intended to amend Title VII to the exclusion of other antidiscrimination statutes).

17 Much of the criticism focuses on the perceived inadequacy of the federal courts to recognize discrimination. See Robert Belton, Mixed-Motive Cases in Employment Discrimination

Law Revisited: A Brief Updated View of the Swamp , 51 M ERCER L.

R EV . 651, 670 (2000) (The

“larger problem” is the “inability, or the refusal, of a significant number of federal judges, including Supreme Court Justices, to recognize the continuing significance that consideration of race and sex, for example, plays in the decisionmaking process [of] our society.”). According to this dominant line of criticism, the “direct evidence” requirement is “a blend of judicial confusion and conservatism” which prevents employment discrimination plaintiffs from having their day in court. Zubrensky, supra note 4, at 970. At its core, the scholarly debate over antidiscrimination law reflects an underlying disagreement as to whether discrimination is largely a thing of the past or an ever-present, albeit often unconscious, element in workplace decisionmaking. Compare

Charles A. Sullivan, Disparate Impact: Looking Past the Desert Palace Mirage , 47 W M .

& M ARY

L.

R EV . 911, 919 (2005) (“[D]iscrimination in the new millennium is both more pervasive and less conscious than the aversion Title VII originally targeted in 1964.”) with Christopher R.

Hedican, Jason M. Hedican & Mark P.A. Hudson, McDonnell Douglas: Alive and Well , 52

D RAKE L.

R EV . 383, 419 (2004) (“[T]he Supreme Court . . . has never found [that] an

‘unconscious intent’” underpins antidiscrimination statutes or “constitute[s] a target of

[antidiscrimination] laws.”). Over the past ten years the EEOC has consistently found reasonable cause under all discrimination statutes in less than ten percent of cases and no reasonable cause in


2008] S T R A Y R E M A R K S 1799 in competing and confusing definitions among the circuit courts of appeals, 18 and critiqued as a “veiled excuse” for judges to “substitute their own judgment for the jury.” 19 Unfortunately Desert Palace failed to clarify seemingly intractable questions in employment discrimination law: “what is discrimination” and “how is it proven” in mixed-motive cases.

20 Many courts continue to use the same proof paradigms that prevailed prior to Desert Palace , while others have altered the employee’s burden of proof in mixed-motive cases in a manner inconsistent with the mixed-motive theory. By examining the relationship between mixed-motive cases and traditional employment cases, known as McDonnell Douglas or pretext cases,

21

which constitute the bulk of employment discrimination claims, the employee’s burden of proof in mixed-motive cases can be properly understood and the problem of stray remarks significantly remedied.

Part I of this Note discusses the development of the McDonnell

Douglas and mixed-motive theories and the effects of the 1991 Act and

Desert Palace in mixed-motive cases .

Part II answers the question of

“what is discrimination” in mixed-motive cases by explaining the employee’s initial burden in mixed-motive cases. This Part examines the origin of the mixed-motive theory and concludes that the mixedmotive plaintiff must demonstrate a minimal causal connection between employer comments and the adverse employment action. Against this backdrop, Part III wades into the “direct evidence” quagmire and examines “how discrimination is proven” in a mixed-motive case. This

Note argues that the proof paradigms which prevailed prior to Desert

Palace have largely continued in its wake because courts use “direct evidence” as a shorthand to describe situations where they believe the evidence warrants a reasonable inference of discrimination.

Consequently, the failure of federal courts to apply a clear and helpful mixed-motive test before Desert Palace persists in its wake. Part IV criticizes other approaches based on Desert Palace as inconsistent with the mixed-motive theory and proposes a proximity test, based on the roughly sixty percent. Equal Employment Opportunity Commission, ALL Statutes: FY 1997-

2006, http://www.eeoc.gov/stats/all.html (last visited Oct. 11, 2007). While some scholars cite

EEOC statistics to “support the view that the majority of plaintiffs’ [antidiscrimination] claims are legally meritless,” Hedican et al., supra , at 422 n.220, others cite the low success rate for employment discrimination plaintiffs as evidence that “federal judges are hostile to discrimination claims.” Sullivan, supra , at 941-43 & 998 nn.121-24.. This Note does not attempt to wade into this controversy but simply to propose an analysis that that will aid in evaluating the evidence presented by plaintiffs who rely on employer comments to carry their mixed-motive burden.

18 See discussion Part III infra (analyzing the various ways circuits apply the “direct evidence” requirement).

19 Costa v. Desert Palace, Inc., 299 F.3d 838, 853 (9th Cir. 2002).

20 Belton, supra note 17, at 669.

21 Pretext cases are explained, infra , in Part I.A.


1800 C A R D O Z O L A W R E V I E W [Vol. causal connection requirement in retaliation cases, 22 which provides a doctrinally sound, practical, and efficient method for analyzing employer comments in mixed-motive cases.

I.

T HE P ROBLEMS OF P ROOF AND C AUSATION IN E MPLOYMENT

D

ISCRIMINATION

L

AW

: T

HE

P

RETEXT AND

M

IXED

-M

OTIVE

T

HEORIES

A. McDonnell Douglas : Rectifying the Problem of Proof in

Employment Discrimination

Title VII of the Civil Rights of Act of 1964 makes it unlawful for an employer to discriminate against an individual “ because of such individual’s race, color, religion, sex, or national origin.” 23 An employee bringing an intentional discrimination claim under Title VII must show that the employer acted because of a factor proscribed by

Title VII. This puts the employee “in the difficult position of having to prove the [employer’s] state of mind.” 24 Proving an employer’s state of mind is problematic. Unlike in an intentional tort action, where the defendant’s state of mind can be inferred from his conduct (in a battery action, for instance, we infer that a defendant who beats the plaintiff with a baseball bat possesses the intent to harm the plaintiff), 25 the same inference cannot be made in the employment discrimination context since (unlike in the battery example) the employer is entitled to perform the underlying act—firing the employee—as long as the employer does not do so for the wrong (illegal) reasons.

In McDonnell Douglas v. Green 26 the Supreme Court attempted to make it easier for an employee to prove an employer’s discriminatory state of mind with a three part burden shifting scheme.

27 The

McDonnell Douglas scheme creates a series of rebuttable presumptions which allow the factfinder to infer the existence of the employer’s intent

22 See generally Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001).

23 42 U.S.C. § 2000e-2(a)(1) (2000) (emphasis added). See also Age Discrimination in

Employment Act, 29 U.S.C. § 623(a)(1) (2000) (making it unlawful to discriminate “ because of

[an] individual’s age”) (emphasis added); Americans with Disabilities Act, 42 U.S.C. § 12112(a)

(2000) (making it unlawful to discriminate “ because of [an individual’s] disability”) (emphasis added).

24 Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999).

25 See id.

26 411 U.S. 792 (1973).

27 See, e.g.

, Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1998) (“Employers of a mind to act contrary to law seldom note such a motive in their employee’s personnel dossier.

Specific intent will only rarely be demonstrated by ‘smoking gun’ proof . . . . The McDonnell

Douglas procedure attempts to compensate for this lack of evidence to ensure that the employee has his or her day in court.”).


2008] S T R A Y R E M A R K S 1801 to unlawfully discriminate based on the absence of other credible reasons for the employment decision. First, an employee creates a legally rebuttable presumption of discrimination by establishing the elements of a prima facie case: that he or she is (1) a member of a protected class, (2) who, although qualified for the position in question,

(3) was rejected, and (4) the employer continued to seek applicants after the rejection.

28 At the second stage, the employer rebuts the prima facie case by producing admissible evidence of a nondiscriminatory reason for rejecting the employee.

29 After the employer produces a nondiscriminatory reason that explains his actions the presumption of discrimination “drops from the case.” 30 At this point, in the final part of the McDonnell Douglas scheme, the employee has an opportunity to prevail by showing that the employer’s articulated reasons are a pretext for discrimination.

31 One way the employee can make this showing is by presenting evidence that similarly situated individuals outside of the plaintiff’s protected class were treated differently.

32 This makes the employee’s task “somewhat easier” 33 since showing that the employer’s articulated reason for the firing is “unworthy of credence” 34 is not as difficult as it would be to directly illuminate the employer’s state of mind. If the factfinder rejects the employer’s proffered reason, the lack of an alternative explanation permits (but does not require) an inference that the employer’s decision was discriminatory.

28 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

See also Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (“Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.”).

Establishing a prima facie case “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).

29 Burdine , 450 U.S. at 254-56.

30 Id.

at 256 n.10.

31 Id.

A pretext is “a false . . . reason or motive advanced to hide the actual . . . reason or motive.” B LACK ’ S L AW D ICTIONARY 1225 (8th ed. 2004). “Short of falsity, pretext can be shown by demonstrating inconsistencies and holes in the employer’s statement of reasons, or irregularities in the interview or application process or the procedures for discharge.” L ARSON ,

E MPLOYMENT D ISCRIMINATION § 8.04

(Matthew Bender & Co., Inc. 2006).

“However, one must bear in mind . . . that an employer’s action may be based on a good faith belief, even though the reason may turn out in retrospect to be mistaken or false.” Id . Unless there is independent evidence that the employer did not discriminate, a showing of pretext is legally sufficient to produce a verdict for the employee. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,

148 (2000). See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Laxton v. Gap Inc.,

333 F.3d 572, 578 (5th Cir. 2003) (“The ‘rare’ instances in which a showing of pretext is insufficient to establish discrimination are (1) when the record conclusively reveals some other, nondiscriminatory reason for the employer’s decision, or (2) when the plaintiff creates only a weak issue of fact as to whether the employer’s reason was untrue, and there was abundant and uncontroverted evidence that no discrimination occurred.”).

32 L ARSON , supra note 31, § 8.04.

33 Wright v. Southland Corp., 187 F.3d 1287, 1291 (11th Cir. 1999).

34 Burdine , 450 U.S. at 256.


1802 C A R D O Z O L A W R E V I E W [Vol.

B. Price Waterhouse : The Problem of Causation in Employment

Discrimination and the Rise of the “Direct Evidence” Requirement for

Mixed-Motive Cases

Most employment discrimination cases proceed under the

McDonnell Douglas rubric and the dispositive issue is the credibility of the nondiscriminatory reason proffered by the employer.

35 However, in cases where an employer articulates a nondiscriminatory reason to explain the employment decision and the employee cannot show pretext the employee will lose under McDonnell Douglas . In these cases, where the employer’s explanation is deemed credible, the employee’s only recourse is to argue that the employer acted on a combination of legitimate and discriminatory motives. But without the aid of

McDonnell Douglas , the employee must now shed light directly on the employer’s discriminatory intent.

36 And even if the employee succeeds in revealing a discriminatory motive on the part of the employer, the factfinder must still resolve the central question of causation: When the employment decision is based on both discriminatory and nondiscriminatory motives, when is it fair to say that decision was taken because of discrimination, as required by the language of Title VII?

37

This was the question addressed by a divided court in Price

Waterhouse v. Hopkins .

38 The Justices agreed that the ultimate threshold for liability under Title VII was “but for” causation.

39 In other words, the employer’s consideration of the employee’s protected class must be outcome determinative in the employment decision.

40 If the

35 There is some disagreement over whether employees prefer the McDonnell Douglas or the mixed-motive scheme. On its face, the mixed-motive scheme would seem to favor the plaintiff because the “risk of nonpersuasion shift[s] to the defendant,” Walden v. Georgia-Pacific Corp.,

126 F.3d 506, 512 (3d Cir. 1997). However, many plaintiffs avoid the mixed-motive scheme because of the built in affirmative defense, which can limit their recovery. Compare Michael J.

Zimmer, The New Discrimination Law: Price Waterhouse is Dead, Wither McDonnell Douglas ?

53 E MORY L.J. 1887, 1942 (2004) (explaining that employees avoid the mixed-motive theory out of fear that the jury will “split the baby” by invoking the employer’s affirmative defense) with

Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000) (“[M]ost plaintiffs perceive the [mixed-motive] framework and its concomitant burden-shifting as conferring a pronounced advantage. In the average case, the employee thirsts for access to it, while the employer regards it as anathema.”). Either party can request a mixed-motive instruction.

L ARSON , supra note 31, § 8.09

(2006).

36 Cf.

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (“[T]he McDonnell

Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”).

37 42 U.S.C. § 2000e-2(a)(1) (2000).

38 490 U.S. 228 (1989).

39 Id.

at 281 (Kennedy, J., dissenting) (“The importance of today’s decision is not the standard of causation it employs, but its shift to the defendant of the burden of proof.”). The concept of “but for” causation originated in tort law and is defined as the “cause without which the event could not have occurred.” B LACK ’ S L AW D ICTIONARY 234 (8th ed. 2004).

40 See infra note 96 and accompanying text discussing “but for” causation.


2008] S T R A Y R E M A R K S 1803 employer would have made the same decision in the absence of discriminatory motives, then the decision was not truly taken “because of” the employee’s protected characteristic and no liability could attach under Title VII. The court divided on the significant question of which party bears the burden of proof to show which motive (discriminatory or nondiscriminatory) is outcome determinative. Six justices held that the burden rests with the employer-defendant.

41 But among those six, the justices disagreed over what showing the employee-plaintiff must initially make of the employer’s discriminatory intent before the burden shifts to the employer to demonstrate a lack of “but for” causation.

Justice Brennan’s plurality opinion stated that once the employee shows that discrimination is a “motivating part” in the employer’s decision, the employer can escape liability only by proving, as an affirmative defense, “that it would have made the same decision even if it had not [discriminated].” 42 Justice O’Connor concurred that the burden on the issue of causation should eventually shift to the defendant, but worried that the plurality’s description of the employee’s initial burden would bring about the “strong medicine” 43 of the burden shift too swiftly and thus ensnare employers based on bad thoughts alone.

44 She therefore attempted to frame the employee’s initial burden

41 Price Waterhouse , 490 U.S. at 228 (plurality opinion), 258 (White, J., concurring), 261

(O’Connnor, J, concurring).

42 Id.

at 258 (emphasis added). In other words, the employer could escape liability by showing a lack of “but for” causation. In her concurrence, Justice O’Connor justified this burden shift because it would only occur after the employee makes “a strong showing that the employer has done exactly what Title VII forbids.” Id . at 267. After the employee makes this “strong showing” it is justified to shift the burden of proving that there was no injury to the employee because “a reasonable factfinder could conclude that absent further explanation the employer’s discriminatory motivation [was outcome determinative].” Id . at 265.

43 Id. at 262.

44 Id.

at 261-279 (O’Connor, J., concurring).

The legislative history makes it clear that Congress was attempting to eradicate discriminatory actions in the employment setting, not mere discriminatory thoughts.

Critics of the bill that became Title VII labeled it a “thought control bill,” and argued that it created a “punishable crime that does not require an illegal external act as a basis for judgment.” 100 C ONG .

R EC . 7254 (1964) (remarks of Sen. Ervin). Senator Case, whose views the plurality finds so persuasive elsewhere, responded: “The man must do or fail to do something in regard to employment. There must be some specific external act, more than a mental act. Only if he does the act because of the grounds stated in the bill would there be any legal consequences.” Ibid.

Id. at 262.

Punishing “bad thoughts,” which are unconnected to specific acts may also be unconstitutional. Cf. Robison v. California, 370 U.S. 660, 679 (1962) (Harlan, J., concurring)

(invalidating a criminal statute which required only that the defendant possess “a bare desire to commit [an illegal] act”); Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words

Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws , 39

UCLA L.

R EV . 333, 363 (1991) (“[T]he state’s power to punish [a wrongful] action [cannot] remove the constitutional barrier to punishing the [actor’s] thoughts” (citing United States v.

O’Brien, 391 U.S. 367 (1968))); Matthew R. Scott & Russell D. Chapman, Essay, Much Ado

About Nothing—Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed All


1804 C A R D O Z O L A W R E V I E W [Vol. in more restrictive terms, which justified shifting the burden to the employer only after “an employee has demonstrated by direct evidence that an illegitimate factor played a substantial role in a particular employment decision.” 45 Justice O’Connor gave several examples of comments that would not constitute “direct evidence,” such as “stray remarks in the workplace,” 46 discriminatory “statements by nondecisionmakers, or statements by decisionmakers but unrelated to the decisional process.” 47 In the years following Price Waterhouse , lower courts adopted Justice O’Connor’s concurrence as the controlling opinion 48 and required that employees who could not show pretext under McDonnell Douglas present “direct evidence” of discrimination.

49

Employment Discrimination Cases to Mixed-Motive , 36 S T .

M ARY ’ S L.

J. 395, 403 & n.51 (2005)

(criticizing scholars who propose that Desert Palace has made the mixed-motive theory available in all Title VII cases as a “[w]elcome to 1984 and the world of the Thought Police”).

This Note builds on the proposition, supported by the legislative history of both the 1964 and 1991 Civil Rights Acts, see infra Part II.C, as well as Justice O’Connor’s concurring opinion in Price Waterhouse , that not all evidence of discriminatory (bad) thoughts on the part of an employer is indicative of discriminatory decisionmaking. See, e.g.

, Rivers-Frison v. Se. Mo.

Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998) (stating that “not every prejudiced remark made at work supports an inference of illegal employment discrimination” and granting summary judgment to defendant on a mixed-motive claim where plaintiff “failed to show any link between [racist] remarks and her termination”). See also Gellman, supra , at 367-68

(“Discrimination and bigotry are not the same thing: the former is an illegal act, the latter is a constitutionally protected (albeit odious) attitude. . . . It is the discriminatory action, and not the racial motive, that Congress intended to prohibit . . .

.”). But see Dominguez-Curry v. Nev.

Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir. 2005) (stating that the Ninth Circuit has “repeatedly held that a single discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to preclude summary judgment for the employer”).

45 Price Waterhouse , 490 U.S. at 275 (emphasis added).

46 Id.

at 277.

47 Id.

48 These courts relied on the rule of Marks v. United States , 430 U.S. 188, 193 (1977): “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds,” and considered Justice O’Connor’s concurrence as the narrowest grounds for the Price Waterhouse decision. See, e.g.

, Fernandes v.

Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999) (“Most courts agree that Justice

O’Connor’s seminal concurrence in Price Waterhouse furnishes the best device for . . . segregating mixed-motive cases from the mine-run of discrimination cases . . . . After all, when the Supreme Court rules by means of a plurality opinion (as was true in Price Waterhouse ), inferior courts should give effect to the narrowest ground upon which a majority of the Justices supporting the judgment would agree.” (citing Marks , 430 U.S. at 193)). See generally Mark

Alan Thurmon, When the Court Divides: Reconsidering the Precedential Value of Supreme Court

Plurality Decisions , 42 Duke L.J. 419, 427 (1992) (“The Marks ‘narrowest grounds’ doctrine represents an effort to reconcile the problems created by a fragmented multi-member Court with the potential advantages of a single majority opinion.”). But see Thomas v. Nat’l Football League

Players Ass’n, 131 F.3d 198, 203 (D.C. Cir. 1997) (concluding that “direct evidence” was a holding of Price Waterhouse because “Justice O’Connor’s concurrence was one of six votes supporting the Court’s judgment . . . [therefore] it is far from clear that [her] opinion, in which no other Justice joined, should be taken as establishing binding precedent”).

49 See, e.g.

, Gagnon v. Sprint Corp., 284 F.3d 839, 849-50 (8th Cir. 2002) (“Absent direct evidence of discrimination invoking the mixed-motive analysis of Price Waterhouse, the burdenshifting analysis of McDonnell Douglas applies.”); Fernandes , 199 F.3d at 581 (noting that courts


2008] S T R A Y R E M A R K S 1805

C. Desert Palace : Eliminating Justice O’Connor’s Direct Evidence

Requirement Based on the Civil Rights Act of 1991

The Civil Rights Act of 1991 codified the basic mixed-motive theory announced in Price Waterhouse in section 703(m) of Title VII by providing that “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.” 50 However, no court had held that the 1991 Act altered the employee’s mixed-motive burden until 2002, when the Ninth Circuit interpreted section 703(m) to eliminate Justice O’Connor’s “direct evidence” requirement in mixedmotive cases.

51

The Supreme Court affirmed.

52 In a short and unanimous opinion penned by Justice Thomas, the Court in Desert Palace affirmed the typically distinguish pretext from mixed-motive cases “based on the availability or unavailability of direct evidence”); Rivers-Frison , 133 F.3d at 618-19 (stating that intentional employment discrimination claims are “analyzed under one of two frameworks . . . direct evidence [ Price

Waterhouse ] or indirect evidence [ McDonnell Douglas ] analysis”).

50 42 U.S.C. § 2000e-2(m) (2000) (emphasis added). The 1991 Act was passed in response to a series of Supreme Court decisions, most notably Wards Cove Packing Co. v. Antonio, 490 U.S.

642 (1989), which Congress believed had “weakened the scope and effectiveness of Federal civil rights protections.” Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.

51 Costa v. Desert Palace, Inc., 299 F.3d 838, 851-54 (9th Cir. 2003).

Prior to Desert Palace courts generally understood that the only modification to Price Waterhouse was contained in 42

U.S.C. § 2000e-5(g)(2)(B) (2000), which altered the effect of the employer prevailing on the same-decision defense, by providing the employee with limited remedies rather than acting as a complete bar to recovery under Price Waterhouse :

On a claim in which an individual proves a violation under section 703(m) . . . and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a [mixed motive claim] . . . and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

This section altered the holding of Price Waterhouse by changing the effect of the employer prevailing on the same-decision defense. Under Price Waterhouse that defense completely precluded any recovery by the employee, but under the 1991 Act, instead of acting as a complete bar to recovery, the same-decision defense limited the employee’s remedies to declaratory and certain injunctive relief, costs, and attorneys fees. Id . As then-Judge Alito put it, “[Section 703

(m)] plainly alters the scope of the Price Waterhouse affirmative defense . . . [but] does not, at least on its face, alter the other significant holding of Price Waterhouse set forth in Justice

O’Connor’s concurrence [regarding] the distinction drawn between ‘pretext’ and ‘mixed-motive’ cases and the evidentiary showing necessary to trigger a shift in the burden of persuasion with respect to causation.” Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 216 (3d Cir. 2000).

Indeed, the Supreme Court’s conclusion that section 703(m) was intended to alter Justice

O’Connor’s concurrence is questionable and Daniel P. Johnson, Note, Employment Law: Desert

Palace, Inc. v. Costa: Returning to Title VII’s Core Principles by Eliminating the Direct Evidence

Requirement in Mixed-Motive Cases , 57 O KLA .

L.

R EV . 403, 414-23 (2004), has argued persuasively that Desert Palace was wrongly decided on several grounds.

52 See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).



Ninth Circuit Court of Appeals, en banc, 53 and held that a Title VII plaintiff does not need to offer “direct evidence” of discrimination in a mixed-motive case but must simply show that, per the language of the

1991 Act, “race, color, religion, sex, or national origin was a motivating factor for any employment practice.” 54 The Court relied on Title VII’s silence with respect to imposing a heightened evidentiary requirement, 55 the adequacy of circumstantial evidence in other contexts, 56 and the use of the term “demonstrate,” which is defined elsewhere in the 1991 Act without reference to “direct evidence.” 57 In so holding, the Court overruled the position taken by ten circuit courts of appeal.

58

But despite the Court’s definitive rejection of the direct evidence requirement, Desert Palace raised many more questions than it answered in resolving the circuit split over “direct evidence.” The

Court acknowledged that section 703(m) applied to mixed-motive cases, but noted that the case did not require it to decide “when, if ever, [§

703(m)] applies outside of the mixed-motive context,” 59 leaving open the possibility that section 703(m) might alter the McDonnell Douglas framework as well.

60 The court did not explain how proving that discrimination is a “motivating factor” is different from proving that it is pretextual under McDonnell Douglas . Most importantly, the Court failed to explain the employee’s burden in mixed-motive cases except for reiterating the statutory language of the 1991 Act. The Court did not answer whether section 703(m) codified Justice Brennan’s “motivating part” standard from Price Waterhouse , Justice O’Connor’s “substantial role” formulation, or adopted a new standard altogether.

61 Nor did the

Court address whether Justice O’Connor’s statement that stray remarks are insufficient for establishing Title VII liability survived the 1991 Act.

Simply put, by eliminating the direct evidence requirement, Desert

53 Costa , 299 F.3d at 838.

54 Desert Palace, 539 U.S. at 101 (quoting 42 USC § 2000e-2(m)) (emphasis added).

55 Id. at 99. Although the legislative history indicates that Congress intended to retain some form of the “direct evidence” requirement, see Johnson, supra note 51, at 420, the Court found

“the words of the statute [were] unambiguous,” so no further inquiry was necessary. Desert

Palace , 539 U.S. at 98. This conclusion is questionable in light of the preference against construing statutes to repeal case law by implication. See Johnson, supra note 51, at 418 nn.106-

09 and accompanying text.

56 Desert Palace , 539 U.S. at 100.

57 Id.

58 As the dissenting judges from the en banc panel put it, “[b]y vitiating Justice O’Connor’s direct evidence requirement, the majority’s holding puts our circuit in conflict with almost all others.” Costa , 299 F.3d at 866 (dissenting opinion) (citations omitted).

59 Desert Palace , 539 U.S. at 94 n.1.

60 A heated scholarly debate has erupted over this issue. See infra note 164.

61 Benko v. Portage Area Sch. Dist., No. 03-233J, 2006 U.S. Dist. LEXIS 40573, at *17

(W.D. Pa. June 19, 2006) (“The Supreme Court did not address the McDonnell-Douglas pretext analyses and how the Costa decision may affect its future use and the Court also did not answer the question of which opinion in the Price Waterhouse decision was the controlling opinion.”).


2008] S T R A Y R E M A R K S 1807

Palace clarified that a mixed-motive employee does not have to produce direct evidence, but declined to explain what a mixed-motive employee does have to show before the court may shift the burden to the employer. Specifically, Desert Palace did not clarify what level of causation a mixed-motive employee must show before the burden properly shifts to the employer on the ultimate issue of “but for” causation.

II.

T HE C ONCEPT OF “M INIMAL C AUSATION ” IN S ECTION 703( M ):

U

NDERSTANDING THE

E

MPLOYEE

’

S

B

URDEN IN

M

IXED

-M

OTIVE

C

ASES

The term “mixed-motive” is frequently misunderstood. The mixed-motive label does not merely describe a discrimination case where both legitimate and illegitimate motives are alleged—or even have contributed—to the employer’s decision.

62 Rather, a mixedmotive case is one in which it has already been shown that both discriminatory and nondiscriminatory motives impacted the employment decision and the remaining question is one of causation.

63

In this situation the critical inquiry is what the employee must show in persuading the factfinder of the presence of a discriminatory motive before the law shifts the burden of persuasion to the defendant to prove that nondiscriminatory motives caused the contested employment action. This section will discuss how the mixed-motive employee satisfies that burden.

A. Textual History of Section 703(m): Stray Remarks Are Insufficient to Satisfy the Employee’s Mixed-Motive Burden

The controversy over “direct evidence” has largely obscured what should have been the primary question after Price Waterhouse : What

62 E.g.

, Padilla-Owens v. Sandia Nat’l Lab., No. CIV 02-0448 JB/WDS, 2003 U.S. Dist.

LEXIS 26710, at *52 n.8 (D.N.M. Nov. 25, 2003) (“Simply because more than one employer motive is at issue does not necessarily mean that the case is a ‘mixed motive’ one.”).

63 Mixed-motive cases are only a subset of cases where multiple motives are alleged, where the evidence reasonably shows “that the employer actually relied [on the employee’s protected trait] in making its decision,” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), before the burden to disprove “but for” causation shifts to the defendant.

“The [ Price Waterhouse ] burden shift properly will be found to apply in only a limited number of employment discrimination cases. The application of the new scheme, furthermore, will make a difference only in a smaller subset of cases.” Id.

at 290-91 (Kennedy, J., dissenting). If only discriminatory motives have been shown then the mixed-motive scheme is inappropriate because the only evidence points to discrimination as the causal factor. Likewise, if only nondiscriminatory motives have been shown the mixed-motive scheme will be of little help to the employee, who will automatically lose.


1808 C A R D O Z O L A W R E V I E W [Vol. level of causation must the employee show to meet its burden in a mixed-motive case?

64 The inquiry for determining what showing satisfies this burden should begin with the statutory text of the 1991 Act itself.

65 Under the 1991 Act, once the employee “demonstrates that race, color, religion, sex, or national origin [is] a motivating factor for any employment practice,” 66 the burden shifts to the employer to prove that the same decision would have been made in the absence of discrimination.

67 The “motivating factor” language of the 1991 Act is similar to language used in Price Waterhouse , and it is identical to language found in prior case law.

68 Desert Palace itself does not assist in this inquiry because it “did not answer the question of which opinion in the Price Waterhouse decision was the controlling opinion.” 69

Justice Brennan described the employee’s mixed-motive burden at various points in his Price Waterhouse plurality opinion, as a showing that discrimination “was a factor,” 70 “played a part,” 71 “played a motivating part,” 72 “affect[ed] [the] decision-making process,” 73 or

“proved relevant to an employment decision” 74 “at the moment it was made.” 75 By contrast, Justice O’Connor couched her standard in more specific, limiting terms, stating that the employee’s mixed-motive burden requires a showing that discrimination “was a substantial factor,” 76 “played a substantial role,” 77 or that the employer “placed substantial reliance on factors [prohibited by Title VII].” 78 Justice


65 Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (“[T]he starting point for our analysis is the statutory text.”).

66 42 U.S.C. § 2000e-2(m) (2000) (emphasis added).

67 42 U.S.C. § 2000e-5(g)(2)(B) (2000).

68 See infra notes 78 and accompanying text. It is a commonly held cannon of construction that statutory language should be construed in light of the meaning it had prior to construction.

See A NTONIN S CALIA , A M ATTER OF I NTERPRETATION : F EDERAL C OURTS AND THE L AW 27

(1997) (“Words and phrases which have received judicial construction before enactment are to be understood according to the construction.” (quoting Karl N. Llewellyn, Remarks on the Theory of

Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed , 3 V AND .

L.

R EV . 395, 403 (1950))).

69 Benko v. Portage Area Sch. Dist., No. 03-233J, 2006 U.S. Dist. LEXIS 40573, at *17

(W.D. Pa June 19, 2006).

70 Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (plurality opinion).

71 Id.

at 247 n.12.

72 Id. at 244.

73 Id. at 248.

74 Id.

75 Id. at 241.

76 Id.

at 265.

77 Id.

at 267.

78 Id.

at 271. Although the “motivating factor” language, codified in section 703(m), closely mirrors the “motivating part” formulation from the Price Waterhouse plurality, it originated in a pair of cases decided on the same day during the 1977 Supreme Court term, Mt. Healthy City

Board of Education v. Doyle , 429 U.S. 274 (1977), and Arlington Heights v. Metropolitan

Housing Development Corp.

, 429 U.S. 252 (1977). In Mt. Healthy , the Court equated a

“motivating factor” with a “substantial factor.” Mt. Healthy , 429 U.S. at 287 (“Initially, in this


2008] S T R A Y R E M A R K S 1809

O’Connor’s evidentiary threshold would be met where, absent further explanation, a reasonable factfinder could conclude the discriminatory motive was the “but for” cause for the employment decision.

79

However, even though Justice O’Connor maintained that her threshold standard differed substantially from the plurality’s, 80 the plurality was befuddled as to how Justice O’Connor’s test differed meaningfully from their own.

81 The stray remarks problem weighed heavily for Justice O’Connor, who was concerned that if an employer referred to a female applicant as a “lady candidate,” it might show that gender “played a role” in the decision and thus shift the burden to the defendant under circumstances where no rational factfinder could conclude, based on that comment alone, that the adverse employment decision was made “because of” the candidate’s gender.

82 On this reading of the plurality’s opinion, Justice O’Connor feared that Title VII would become a “thought control bill” by creating a “punishable crime case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a ‘substantial factor’ or to put it in other words, that it was a ‘motivating factor’ in the Board’s decision not to rehire him.”). Reading section 703(m) in this context, one can conclude that it was intended to codify Justice O’Connor’s description of the employee’s mixed-motive burden in Price Waterhouse , which also used the

“substantial factor” terminology. Price Waterhouse , 490 U.S. at 265 (O’Connor, J., concurring)

(justifying the burden shift in mixed-motive cases once the employee shows that discrimination was a “ substantial factor in [the] adverse employment decision”) (emphasis in original). This would explain the reluctance of lower courts to alter their mixed-motive jurisprudence after the passage of the 1991 Act, which courts generally understood to alter only the impact of proving same-decision defense, but not the employee’s mixed-motive burden under Price Waterhouse .

See supra note 51.

The companion case, Arlington Heights , indicates that the adoption of the motivating factor language in section 703(m) may have been intended to obliterate the “direct evidence” requirement since it employed the “motivating factor” language inclusive of circumstantial evidence: “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights , 429 U.S. at 266 (emphasis added).

79 Price Waterhouse , 490 U.S.

at 265 (O’Connor, J., concurring) (“Where an individual disparate treatment plaintiff has shown by a preponderance of the evidence that an illegitimate criterion was a substantial factor in an adverse employment decision, the deterrent purpose of the statute has clearly been triggered. More importantly, as an evidentiary matter, a reasonable factfinder could conclude that absent further explanation, the employer’s discriminatory motivation ‘caused’ the employment decision.”).

80 Id.

at 277. Justice O’Connor appears to have believed that the plurality’s approach divested the statute of its causal requirement. Id.

at 278. For her, the plurality’s “played a role” formulation may merely describe a situation were the employer is aware of the employee’s protected characteristic “in a neutral and nondiscriminatory fashion” but has not relied on it to the detriment of the employee. Id.

at 277.

81 Id.

at 250 n.13. (“After comparing [our] description of the plaintiff’s proof to that offered by Justice O’Connor’s opinion concurring in the judgment, we do not understand why the concurrence suggests that they are meaningfully different from each other.”).

82 Id.

at 277. Justice O’Connor did not believe that the plurality opinion accounted for the fact that “[r]ace and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and about which they may comment in a perfectly neutral and nondiscriminatory fashion.” Id.


1810 C A R D O Z O L A W R E V I E W [Vol. that does not require an illegal external act.” 83 But since the plurality opined that their formulation did not meaningfully differ from Justice

O’Connor’s, 84 it is reasonable to conclude that the plurality would have agreed with Justice O’Connor that a mere reference to the employee’s protected trait, and nothing else, was insufficient to establish liability in a mixed-motive case. Thus, since even the Price Waterhouse plurality intended to distinguish stray remarks from comments giving rise to an inference of discrimination, it is fair to conclude that section 703(m) requires employees to come forward with more than mere stray remarks to meet their mixed-motive burden.

85

B. The Legislative History of Section 703(m) Confirms that Congress

Intended to Require Mixed-Motive Plaintiffs to Show a Distinct “Causal

Nexus” Between Employer Comments and the Contested Employment

Action

The legislative history of section 703(m) confirms that Congress intended to weed out stray remarks by requiring the employee to show a causal connection between the employer’s remarks and the adverse employment action. The House Report stated that the 1991 Act was intended to overturn only “one aspect of the Supreme Court’s decision in Price Waterhouse v. Hopkins ,” 86 by reforming the same-decision defense from a complete defense to a partial one.

87 Congress did not intend to bring all cases in which both discriminatory and nondiscriminatory motives are alleged under the ambit of section

703(m), nor did it intend to allow a mixed-motive plaintiff to pile

“inference upon inference” 88 without pointing to a causal nexus between discriminatory comments and the complained of action.

89 The House

83 100 C ONG .

R EC . 7254 (1964) (statement of Sen. Ervin) quoted in Price Waterhouse , 490

U.S. at 262 (O’Connor, J., concurring). The full passage is quoted, supra , in note 44.

84 See supra note 81.

85 Under the plurality’s own formulation, “if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response,” Price Waterhouse, 490

U.S. at 250, the employee’s protected trait might not be a reason despite the presence of a stray remark.

86 H.R.

R EP .

N O . 102-40, pt. 2, at 16 (1991), as reprinted in 1991 U.S.C.C.A.N. 694, 709.

87 See id.

at 2-3, 1991 U.S.C.C.A.N. at 695. (“Section 5 of the Act responds to Price

Waterhouse by reaffirming that any reliance on prejudice in making employment decisions is illegal. At the same time, the Act makes clear that, in considering the appropriate relief for such discrimination, a court shall not order the hiring, retention or promoting of a person not qualified for the position.”).

88 Burns v. AAF-McQuay, Inc., No. 94-00049-H, 1995 U.S. Dist. LEXIS 15192, at *22 n.9

(D. Va. Oct. 6, 1995).

89 Id.

(“[T]here is no evidence of the context in which this statement was made, and . . . without this requisite nexus, this statement evinces no discriminatory intent.” (quoting

O’Connor v. Consol. Coin Caterers Corp., 56 F.3d 542 (4th Cir. 1995))).


2008] S T R A Y R E M A R K S 1811

Report described the employee’s mixed-motive burden by stating that:

Conduct or statements are relevant . . . only if the plaintiff shows a nexus between the conduct or statements and the employment decision at issue. For example, isolated or stray remarks not shown, under the standards generally applied for weighing the sufficiency of evidence, to have contributed to the employment decision at issue are not alone sufficient.

90

Congress’s clear intention that § 703(m) would be invoked only for

“an employer’s actual discriminatory actions, rather than mere discriminatory thoughts” 91 requires differentiation between comments that are sufficient to infer the required casual nexus and comments that are insufficiently connected to the contested employment decision.

92

C. Understanding the Causal Nexus Requirement of Section 703(m):

The Idea of Minimal Causation

Just as the Price Waterhouse plurality saw no difference between their formulation of the employee’s mixed-motive burden and that of

Justice O’Connor, 93 Professor Martin Katz has concluded that the different formulations of the employee’s burden in the Price

Waterhouse plurality (“motivating part”), concurrence (“substantial factor”), and in section 703(m) (“motivating factor”), are semantic.

94

By ruling out more stringent causal standards that exist in tort law, Katz reasons that the employee’s mixed-motive burden can be understood in

90 H.R.

R EP .

N O . 102-40, pt. 2, at 18, 1991 U.S.C.C.A.N. at 711 (stating that the proposed section 703(m) “would not make mere discriminatory thoughts actionable. Rather, to establish liability under the proposed Subsection 703(1), the complaining party must demonstrate that discrimination was a contributing factor in the employment decision— i.e.

, that discrimination actually contributed to the employer's decision with respect to the complaining party”).

91 Id.

92 See also H.R.

R EP .

N O . 102-40, pt. 1, at 48 (1991), reprinted in 1991 U.S.C.C.A.N. 549,

586:

Some opponents of this Section contend that making unlawful any consideration of race or gender in an employment decision would make an employer liable for “mere” thoughts or “stray thoughts” in the workplace. Conduct or statements are relevant under this test only if the plaintiff shows a nexus between the conduct or statements and the employment decision at issue, under the standards generally applied for weighing the sufficiency of evidence. For example, isolated or stray remarks not shown to have contributed to the employment decision at issue are not sufficient to establish liability. Thus, while the existence of an invidious purpose is central to a disparate treatment claim, the provision would not make mere discriminatory thoughts actionable. To establish liability under proposed Subsection 703[m], the complaining party must demonstrate that discrimination actually contributed or was otherwise a factor in an employment decision or action .

93 See supra note 81 and accompanynig text.

94 Katz, supra note 16, at 489.


1812 C A R D O Z O L A W R E V I E W [Vol. terms of “minimal causation.” 95

Katz easily eliminates a “but for” or “outcome determinative” standard because that more rigorous standard is reserved for the employer’s same-decision defense, a question that is only reached after the employee satisfies his mixed-motive burden.

96 To say that the employer would have made the same decision is saying that any discriminatory intent, while still a “motivating factor” was something less than outcome determinative. Therefore, in a mixed-motive case the question of whether the discrimination was the “but for” cause of the employer’s decision cannot be for the employee to prove, because it is precisely the burden allocated to the employer in satisfy the samedecision defense.

97

Katz also eliminates a “sufficient” cause standard. A “sufficient” cause is one that is capable of producing the outcome on its own.

98 But this is not what Title VII requires. The justification for creating the mixed-motive theory was to prevent any reliance on a protected trait in the decisionmaking process, even though, without the presence of other, legitimate motives no adverse decision would have occurred.

Legitimate and discriminatory reasons can both be “but for” causes of an employment decision though neither is sufficient, analogous to two people moving a heavy object that neither could carry alone.

Another alternative is to require no causation at all. However, “[i]f the protected characteristic has no causal influence in the employer’s decision, we cannot say that the employer used the characteristic in its decisionmaking.” 99 With this in mind, Congress intended section

95 Id.

The causal standard that is easiest to eliminate is a “sole cause” standard, which Katz does not even discuss. A sole cause is the “only cause that . . . produces an event or injury.”

B LACK ’ S L AW D ICTIONARY 234 (8th ed. 2004). Justice Brennan easily disregarded this standard in the Price Waterhouse plurality opinion. Brennan wrote that “we know that the words ‘because of’ do not mean ‘ solely because of,’” Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989), citing to the legislative history of Title VII. Id. at 241 n.7 (“Congress specifically rejected an amendment that would have placed the word ‘solely’ in front of the words ‘because of.’” (citing

110 C ONG .

R EC . 2728, 13837 (1964))).

96 Katz, supra note 16, at 501-03 (discussing “but for” causation). See supra note 51, citing the same-decision defense in the 1991 Act. But cf. Martin v. Gingerbread House, Inc., 977 F.2d

1405, 1408 n.4 (10th Cir. 1992) (“Appellee argues the correct standard is a ‘but for’ test: the discharge is unlawful only if it would not have occurred but for the retaliatory intent. We believe the ‘but for’ and ‘motivating factor’ tests are equivalent.”). Of course, a Title VII plaintiff who can show “but for” causation will preclude the same-decision defense and be entitled to the full panoply of damages.

97 See Katz, supra note 16, at 501-03; supra notes 42 (discussing the same-decision defense in Price Waterhouse ), 51 (discussing the same-decision defense in the 1991 Act).

98 Katz, supra note 16, at 498 (discussing “sufficient” causation). See also Price Waterhouse ,

490 U.S. at 248 (“[I]f an employer allows gender to affect its decision-making process, then it must carry the burden of justifying its ultimate decision.”).

99 Katz, supra note 16, at 504. Additionally, “Congress made clear that the ‘motivating factor’ test was intended to connote ‘a nexus’—some type of causal link—between act and outcome.” Id.

The alternative would essentially be a form of strict liability, equating discriminatory animus with employment discrimination, i.e. punishing “bad thoughts.”


2008] S T R A Y R E M A R K S 1813

703(m) to embody some causal requirement, though necessarily one that is less rigorous than a “sufficient” or “but for” standard.

100

The remaining causal standard is that of minimal causation. An employee demonstrates minimal causation by showing that illegal discrimination was a cause of the contested employment decision, but not necessarily a necessary (“but for”) or “sufficient” cause. The employee must present evidence sufficient to allow a reasonable factfinder to conclude either that discrimination was sufficient to cause the contested employment action or that, combined with legitimate motives, it motivated the employer’s action. At that point, the burden shifts to the employer to prove that the same action would have been taken in the absence of any discriminatory motive. For example, in

Price Waterhouse itself, Ann Hopkins, a candidate for partnership, demonstrated minimal causation when she presented evidence that, although many partners objected to her promotion based on her perceived aggressiveness, poor treatment of staff, and poor interpersonal skills, others objected because she was too “macho,”

“overcompensated for being a woman,” and needed to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry.” 101 Although it was not clear whether the partnership would have refused to promote Hopkins regardless of her sex, by demonstrating some causal relationship between her sex and the partners’ refusal to promote her Hopkins satisfied a majority of the Court in Price Waterhouse that discrimination was a motivating factor in the contested employment decision. This showing entitled Hopkins to the mixed-motive burden shift, forcing

Price Waterhouse to persuade the factfinder that the partners would have denied Hopkins’ promotion regardless of her gender.

III.

T

HE

D

IRECT

E

VIDENCE

Q

UAGMIRE

: W

HEN

S

HOULD

E

MPLOYER

C OMMENTS S ATISFY THE E MPLOYEE ’ S M IXED -M OTIVE B URDEN ?

Understanding minimal causation provides a starting point for recognizing what a mixed-motive employee must prove as a prerequisite to the mixed-motive burden shift. However, given that evidence necessary to prove an employer’s state of mind is often scarce, the greater problem in mixed-motive cases is determining how an employee may go about proving minimal causation. Prior to Desert

Palace , the answer was “direct evidence,” which was almost universally recognized as the “the touchstone for mixed-motive analysis.” 102 By

100 Id. at 503-06. See also supra notes 91-92 and accompanying text.

101 Price Waterhouse , 490 U.S. at 234-35.

102 Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999) (surveying the


1814 C A R D O Z O L A W R E V I E W [Vol. requiring employees to present “direct evidence” of discrimination, courts prevented the mixed-motive approach from “swallow[ing] whole the traditional McDonnell Douglas analysis,” 103 and turning every employment discrimination suit into a mixed-motive action where the ultimate burden rested on the employer. But what is “direct evidence?”

A close analysis reveals that the “direct evidence” positions that existed prior to Desert Palace were subject to frequent revision by the circuits and provided scant reliable precedent for employees to determine whether their evidence in a given case would be deemed “direct evidence” sufficient to qualify for the mixed-motive burden shift. The

First Circuit recognized that there was some overlap in the positions, 104 while the Ninth Circuit noted that even “within circuits, cases sometimes take different approaches.” 105

Judge Selya of the First Circuit surveyed the different “direct evidence” definitions adopted by the courts of appeal, and divided them into three positions.

106 The first, known as the “classic” or

“dictionary” 107 position, requires the employee to present “evidence which, if believed, suffices to prove [discrimination] without inference, presumption, or resort to other evidence.” 108 Second, the “animus plus” position, requires the employee to produce evidence that must “(1) reflect directly the alleged discriminatory animus and (2) bear squarely on the contested employment decision.” 109 Finally, the “animus” position contains only the first prong of the “animus plus” position, so that “as long as the evidence . . . is tied to the alleged discriminatory animus, it need not bear squarely on the employment decision.” 110

This section critiques these three positions. The “classic” position, which Desert Palace definitively rejected for Title VII mixed-motive cases, 111 focuses on a formalistic distinction between “direct” and treatment of “direct evidence” in the circuit courts of appeal).

103 Id. at 580 (“It is readily apparent that this mixed-motive approach, uncabined, has the potential to swallow whole the traditional McDonnell Douglas analysis. To guard against this possibility, the [ Price Waterhouse ] Court restricted its applicability to those infrequent cases in which a plaintiff can demonstrate with a high degree of assurance that the employment decision of which he complains ‘was the product of a mixture of legitimate and illegitimate motives.’”

(quoting Price Waterhouse , 490 U.S. at 247)).

104 Id.


106 Fernandes , 199 F.3d at 582.


108 Fernandes , 199 F.3d at 582. The “classic” position has also been referred to as the

“dictionary” definition. See Wright v. Southland Corp., 187 F.3d 1287, 1294 (11th Cir. 1999); see also supra note 4.


110 Id .

111 However, it may still be relevant in claims brought under other employment discrimination statutes, since Desert Palace was predicated on the 1991 Amendments to Title VII, discussed in note 16, supra .


2008] S T R A Y R E M A R K S 1815

“circumstantial” evidence which often stifles employees with convincing circumstantial evidence of discrimination.

112 Consequently, courts developed methods to avoid the severity of the “classic” position by skirting a literal application. By contrast, the “animus” and “animus plus” positions have survived Desert Palace , because they represent two inescapable paradigms for evaluating an employee’s evidence in a mixed-motive case.

113 These positions simply reflect differing judgments regarding whether the evidence presented is sufficient to allow a reasonable factfinder to conclude that discrimination is a motivating factor in the employment decision. The problem with the

“animus” and “animus plus” positions is not that they require a heightened evidentiary standard, which, as Desert Palace explained,

Title VII does not require, 114 but rather that they are not susceptible to coherent and consistent application.

A. The Paper Tiger: The “Classic” Position and Its Escape Routes

The “classic” position requires employees to present “evidence which, if believed, suffices to prove [discrimination] without inference, presumption, or resort to other evidence.” 115 It has been employed in virtually every circuit, often in tandem with the “animus plus” position.

116 This position is the least helpful to employees since, if

112 See infra Part III.A.

113 See infra Parts III.B. and C.

114 See supra text accompanying note 55.


116 Only the D.C. Circuit appears to have totally escaped use of reference to the “classic” position.

One court in the First Circuit treaded close to the “classic” position, in the same case articulating “animus plus.” Scott v. Sulzer Carbomedics, Inc., 141 F. Supp. 2d 154, 171 (D. Mass.

2001). However, the court’s later statement, that “direct evidence” is present only “where a supervisor actually admits that unlawful animus motivated his decision,” id.

, most closely mirrors the language adopted by “classic” courts. See also Dudley v. Augusta Sch. Dep’t, 23 F. Supp. 2d

85, 94 (D. Me. 1998) (adopting the “classic” position citing Eleventh Circuit precedent).

In the Second Circuit, a district court relied on Fifth Circuit precedent in adopting the

“classic” position. Townsend v. Clairol, Inc., No. 3:97CV02599(AWT), 2001 U.S. Dist. LEXIS

2005, at *12 (D. Conn. Feb. 15, 2001).

Judge Selya classified the Third Circuit as “animus plus,” though he acknowledged that it had “flirted with other formulations.” Fernandes , 199 F.3d at 582. In fact the Third Circuit quoted the classic definition in Torre v. Casio, Inc ., 42 F.3d 825, 829 (3d Cir. 1994), and district courts in the Third Circuit have employed it as well. See, e.g.

, Mahaven v. Pulaski Twp., 139 F.

Supp. 2d 663, 666 (W.D. Pa. 2001).

The Fourth Circuit has retained the “animus plus” position, requiring that discriminatory comments “bear directly on the contested employment decision” and establish a “nexus” between the discriminatory attitude and the adverse employment action. Warch v. Ohio Cas. Ins. Co ., 435

F.3d 510, 520 (4th Cir. 2006). On at least one occasion, however, the Fourth Circuit has flirted with the “classic” definition, Adams v. Greenbrier Oldsmobile/GMC/Volkswagen, Inc., No. 97-

1544, 1999 U.S. App. LEXIS 1140, at *18 (4th Cir. Jan. 28, 1999), and district courts have


1816 C A R D O Z O L A W R E V I E W [Vol. taken literally, only an outright admission by the employer of a discriminatory motive qualifies as direct evidence under this position.

117 repeated it as well. See Kappes v. E.I. DuPont De Nemours & Co., No. 97-443-SLR, 1999 U.S.

Dist. LEXIS 3580, at *16, (D. Del. Mar. 18, 1999), aff’d , 275 F.3d 36 (3d Cir. 2001).

The Fifth Circuit has restated the “classic” definition that “[d]irect evidence is evidence which, if believed, proves the fact without inference or presumption,” Jones v. Robinson Prop.

Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005), and this showing shifts the burden to the employer to prove that “the same decision would have been made regardless of the discriminatory animus.” Id.

The Sixth Circuit also described “direct evidence” under the “classic” definition as

“evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions,” Jacklyn v. Schering-Plough Healthcare Prod. Sales

Corp., 176 F.3d 921, 926 (6th Cir. 1999), and has retained this definition after Desert Palace , at least outside of Title VII .

See Peyton v. Kellermeyer Co., 115 Fed. Appx. 825 (6th Cir. 2004).

The Seventh Circuit, also classified as an “animus plus” court in Fernandes, 199 F.3d

at

582, employed the “classic” definition in Rhodes v. Ilinois Departmentt of Transportation , 359

F.3d 498, 504 (7th Cir. 2004) (“Direct evidence is evidence that, if believed by the trier of fact, would prove discriminatory conduct on the part of the employer without reliance on inference or presumption.”), a Title VII case. The court even quoted a preDesert Palace case which held that only an admission by the employer that his actions were based on discrimination would constitute

“direct evidence.” Id.

In a case emblematic of the “direct evidence” morass, a district court quoted the “classic” definition to interpret an Eighth Circuit precedent closely paralleling the “animus plus” position.

Gold Star Taxi & Transp. Serv. v. Mall of Am. Co., 987 F. Supp. 741, 746 (D. Minn. 1997).

Even the Ninth Circuit, Desert Palace ’s progenitor, has employed the classic definition. In

Dominguez-Curry v. Nevada Transportation Department , 424 F.3d 1027 (9th Cir. 2005), the

Court evaded its requirement that an employee’s evidence of discrimination based on an employer’s comments be “specific and substantial,” id. at 1038, by finding that the comments

“women have no business in construction,” and “women should only be in subservient positions,” were direct evidence of discriminatory animus. Id.

The court has defined “direct evidence” as evidence that would prove discriminatory animus without inference or presumption, id.

, a more specific wording of the “classic” position purportedly rejected in Costa v. Desert Palace , 299

F.3d 838 (9th Cir. 2002). The Ninth Circuit has failed to live up to its admonition that “non circumstantial evidence is not the magical threshold for Title VII liability.” Id. at 853. In Bodett v.

Coxcom, Inc.

, 366 F.3d 736 (9th Cir. 2004), the Court invoked “direct evidence” as the threshold issue in a Title VII religion discrimination claim. Id.

at 743 (“[D]irect evidence of [a] discriminatory motive [creates] a triable issue as to the actual motivation of the employer.”). See also Aragon v. Republic Silver State Disposal, 292 F.3d 654, 662 (9th Cir. 2002).

The Tenth Circuit adopted its definition of “direct evidence” straight from Black’s Law

Dictionary , Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999), which has also been restated in non-Title VII cases since Desert Palace . Cox v. U.S.D. 255, 428 F. Supp. 2d

1171, 1176 (“This Circuit takes the view that direct evidence is evidence that, if believed, suffices to prove the fact of discriminatory animus without inference, presumption, or resort to other evidence.”).

The classic or dictionary definition of direct evidence has withstood Judge Tjoflat’s criticism in Wright v. Southland Corp ., 187 F.3d 1287 (11th Cir. 1999); see infra note 124 and accompanying text .

The Eleventh Circuit has reiterated that “[d]irect evidence is evidence, that, if believed, proves the existence of a fact without inference or presumption,” Morris v. Emory

Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005) (quotations omitted), and continues to apply that definition to Title VII claims. Id. at 1082. In the context of strays remarks the Eleventh

Circuit has reiterated that “[o]nly the most blatant remarks, whose intent could mean nothing other than [discrimination] will constitute direct evidence of discrimination.” Thomas v. Aventis

Pharm., Inc., 177 Fed. Appx. 54, 55 n.2 (11th Cir. 2006) (unpublished decision).

117 Thomas v. Nat’l Football League Players Ass’n, 131 F.3d 198, 204 (D.C. Cir. 1997)

(criticizing the “classic” position, noting that “all evidence short of an outright admission . . . requires the factfinder to draw inferences”).


2008] S T R A Y R E M A R K S 1817

As Judge Posner has pointed out, “intent to discriminate is a mental state and mind reading [is] not an accepted tool of judicial inquiry,” 118 therefore a literal reading of the “classic” position forecloses a mixedmotive analysis in any case where the employer has not admitted to discriminating. However, in cases where the evidence reasonably supports an inference of discrimination but cannot satisfy the dictionary definition of direct evidence, those circuits which adopted the “classic” position understandably employ “escape routes” to avoid its harshness.

For example, the Seventh Circuit purportedly held that an admission of discrimination was required to constitute “direct evidence.” 119 However, it created an escape route from the “direct evidence” requirement in cases where the employee could present “a convincing mosaic of circumstantial evidence.” 120 And a subsequent panel held that such circumstantial evidence “must point directly to a discriminatory reason for the employer’s action,” 121 thus potentially closing off the escape route in a judicial bait and switch.

Other circuits have developed similar escape routes which allow convincing circumstantial evidence to satisfy the employee’s mixedmotive burden in order to avoid the severity of the “classic”—no inference—position. In the Second Circuit, a “thick cloud of smoke”

(good circumstantial evidence) can trigger the mixed-motive burden shift in lieu of a “smoking gun” (direct evidence).

122 And the Third

Circuit has explained that the term “direct evidence” is a “misnomer” because circumstantial evidence that “can fairly be said to directly reflect the alleged unlawful [motive]” is sufficient for a mixed-motive plaintiff.

123

One Eleventh Circuit opinion by Judge Tjoflat argued that a number of Eleventh Circuit decisions could not be reconciled with the

Circuit’s purported adherence to the “classic” position.

124 For instance,

118 Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).

119 Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000) (“Direct evidence essentially requires an admission by the decision-maker that his actions were based on the prohibited animus.”).

120 Rhodes , 359 F.3d at 504 (internal quotations omitted); see Troupe v. May Dep’t Stores Co.,

20 F.3d 734, 737 (7th Cir. 1994) (holding that “ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence” may together compose a

“convincing mosaic of discrimination against the plaintiff”).

121 Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003).

122 Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 173-74 (2d Cir. 2006).

123 Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997). Note that this is basically the “animus” position.

124 Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999) (“In sum, an examination of our cases in which we held that the plaintiff had ‘direct evidence’ of improper discrimination shows that the term was not used in its traditional sense as evidence that, if believed, proves the existence of a fact in issue without inference or presumption.”). The argument advanced in

Wright was that Eleventh Circuit precedents could only be reconciled with each other if the term

“direct evidence” was understood to mean “evidence from which a reasonable trier of fact could


1818 C A R D O Z O L A W R E V I E W [Vol. when a female employee was told that a male coworker was selected for a promotion because he “had a wife and children and needed the money more,” 125 the Court had held that the statement would be “direct evidence” under the “classic position,” even while noting that evidence

“subject to more than one interpretation does not constitute direct evidence.” 126 In truth, before such a statement can be credited as evidence of sex discrimination a factfinder would have to infer both that the “decisionmaker’s beliefs regarding the male’s greater need for income were based on a sexual stereotype” and “that this sexual stereotype was the cause of the defendant’s refusal” to promote the plaintiff.

127 The statement, therefore, would not have been considered

“direct evidence” if the “classic” position had been faithfully applied.

As the above examples indicate, the “classic” position prevented the factfinder from drawing reasonable inferences of a discrimination in mixed-motive cases because, definitionally, the “classic” position does not permit inferences.

128 Therefore, courts that purport to adhere to direct evidence employ escape routes or label inferential conclusions

“direct evidence” to avoid the “classic” position’s unfairness.

129 Desert

Palace clearly repudiated the “classic” position, emphasizing that circumstantial and direct evidence should be treated alike.

130 But to the extent that “direct evidence” was just a stand-in for inferences that courts thought were reasonable, Desert Palace slew a paper tiger.

B. “Animus Plus” and the Causal Nexus of Section 703(m)

The “animus plus” position requires the employee to present evidence that “(1) reflect[s] directly the alleged discriminatory animus find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic,” id.

at 1298, or “evidence from which a trier of fact could reasonably find that the defendant more probably than not discriminated against the plaintiff on the basis of a protected personal characteristic.” Id . at 1300. Judge Tjoflat’s analysis did not indicate what evidence establishes a “causal link” or warrants an appropriate inference of probable discrimination under that standard. The other judges on the panel concurred only in the result. Id. at 1306 (concurring opinions).

125 Taylor v. Runyon, 175 F.3d 861, 864 (11th Cir. 1999).

126 Id . at 867 (quoting Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997)).

127 Wright , 187 F.3d at 1295.

128 This Note, therefore, does not agree with those who have contended that the “animus plus” position is “the most stringent.” See, e.g.

, Vesprini v. Shaw Indus., Inc., 221 F. Supp. 2d 44, 57

(D. Mass. 2002).

129 See Wright , 187 F.3d at 1295-98 (discussing Tenth Circuit cases where the Court found that “direct evidence” existed even though it had to draw inferences from the evidence).

130 Desert Palace, Inc., v. Costa, 539 U.S. 90, 100 (2003) (“The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’”

(quoting Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 508, n.17 (1957))).


2008] S T R A Y R E M A R K S 1819 and (2) bear[s] squarely on the contested employment decision.” 131 The

“classic” position reflects a rigid and impractical distinction between circumstantial and direct evidence.

132 The “animus plus” position, however, articulates a formula for describing evidence that gives rise to a reasonable inference of discrimination. Even the position of the D.C.

Circuit, which purported to reject the “direct evidence” requirement, 133 described its own test in terms that closely resemble the “animus plus” position. The D.C. Circuit stated that “[b]urden-shifting under Price

Waterhouse requires evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” 134 This position is indistinguishable from the “animus plus” position that the First Circuit explicitly adopted, that “evidence is ‘direct’ . . . when it consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.” 135 This test does not depend on the nature of the evidence (direct or circumstantial) but on the

“relationship,” or connection, between the evidence and the adverse employment action.

136 In this sense, the “animus plus” position personifies the mixed-motive theory by explicitly requiring the employee to establish some level of (minimal) causation.

The CSC Logic test, adopted by the Fifth Circuit, attempts to weed out stray remarks from probative evidence of discrimination by focusing on whether there is a causal link between the employer’s discriminatory animus and the employment decision.

137 Comments provide “direct evidence” of discrimination in mixed-motive cases if they are (1) related to the plaintiff’s protected class, (2) temporally proximate to the employment decision, (3) made by an individual with authority over the contested decision, and (4) related to the decision.

138 The CSC Logic test is a variation of the “animus plus” position; it attempts to

131 Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 582 (1st Cir. 1999).

132 See the discussion in the previous section supra .

133 See supra notes 48, 117.

134 Thomas v. Nat’l Football League Players Ass’n, 131 F.3d 198, 204 (D.C. Cir. 1997)

(citations and quotations omitted). The Thomas court astutely observed that in Price Waterhouse itself Justice O’Connor relied on circumstantial evidence to show that comments made to Ann

Hopkins suggested that her gender played a role in her rejection for partnership. Id.

135 Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000).

136 Thomas , 131 F.3d at 204 (explaining that “direct” evidence “describes a relationship between proof and incidents and not a characterization of the proof itself.”). As further evidence that the “animus plus” position can exist without reference to “direct evidence” the Ninth Circuit in Costa cited Thomas for authority that Justice O’Connor’s concurrence was not controlling,

Costa v. Desert Palace, 299 F.3d 849-50 (9th Cir. 2002), and also as support for the “animus plus” position. Id. at 852.

137 See Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996).

138 See Trotter v. BPB Am., Inc., 106 Fed. Appx. 272, 276 (5th Cir. 2004); Auguster v.

Vermilion Parish Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001); Krystek v. Univ. of S. Miss., 164

F.3d 251, 256 (5th Cir. 1999); Brown , 82 F.3d at 655.


1820 C A R D O Z O L A W R E V I E W [Vol. distinguish comments that establish a causal connection between the employee’s protected trait and the adverse action from those that are

“vague and remote in time.” 139 Specifically, the CSC Logic test is essentially the “animus plus” position with the added element of temporal proximity. Prongs one and four mirror the two prongs of the

“animus plus” position. The additional requirement that the remark come from a decisionmaker was mentioned in Justice O’Connor’s Price

Waterhouse concurrence.

140 And the decisionmaker requirement, which reflects a common sense assumption that comments from nondecisionmakers cannot ordinarily have a causal relationship to an employment decision, has achieved near universal acceptance.

141

These limitations are analogous to those imposed by the proximate cause doctrine in tort law, 142 which prevents liability in cases where the defendant’s actions are so tenuously connected to the plaintiff’s injuries as to sever the chain of causation as a matter of law.

143 In employment discrimination these limits sever the chain of permissible inferences that can be drawn from a questionable employer comment. In fact, the

House Committee Report for the 1991 Act rejected mixed-motive liability based on “isolated” statements, even by decisionmakers, 144

139 Brown , 82 F.3d at 655-56 (“Comments that are ‘vague and remote in time’ are insufficient to establish discrimination. In contrast, specific comments made over a lengthy period of time are sufficient.”). The Brown test was developed so that a plaintiff who could not make out a prima facie case under McDonnell Douglas could use the employer’s remarks to demonstrate discrimination. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225 (5th Cir. 2000).

140 Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (O’Connor, J., concurring) (“[S]tray remarks in the workplace . . . cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff’s burden in this regard.”).

141 Wallace v. O.C. Tanner Recognition Co., 299 F.3d 96, 101 (1st Cir. 2002); Nichols v.

Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996) (“To be probative allegedly discriminatory statements must be made by the relevant decision maker.”); Browning v. President

Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir. 1998) (“‘[D]irect evidence’ does not include ‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process itself.’”); McGinest v. GTE Serv. Corp., 360

F.3d 1103, 1138 (9th Cir. 2004) (same).

142 See 1-3 D AMAGES IN T ORT A CTIONS § 3.03, (Matthew Bender & Co., Inc. 2006) (“The plaintiff must prove under proximate cause that each injury is recoverable and not cut off by a superseding cause, by being too remote, or by being a highly extraordinary result.”). Another analogy to proximate cause in employment discrimination law is the Supreme Court’s decision in

McKennon v. Nashville Banner Publishing Co.

, 513 U.S. 352 (1995). In McKennon the Court held that evidence acquired after an employee was wrongfully terminated, and severe enough that the employee would have been terminated on those grounds alone, could limit the employee’s recovery. Id . at 362-63.

143 Thus a discriminatory remark by a nondecisionmaker may be analogous to “negligence in the air.” Cf. Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).

144 H.R.

R EP .

N O . 102-40, pt. 1, at 48 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 585

(“[I]solated or stray remarks not shown to have contributed to the employment decision at issue are not sufficient to establish liability.”).


2008] S T R A Y R E M A R K S 1821 echoing Justice O’Connor’s opinion in Price Waterhouse .

145 This limitation prevents employers from being held liable for any offhand question or remark that implicates an employee’s protected trait.

146

Likewise, the requirement that remarks be made by decisionmakers protects employers from liability based on discriminatory attitudes by nondecisionmaking employees.

147 Finally, the requirement that the contested remarks be related to the employee’s protected class prevents

Title VII from breaking out of its statutory mandate to prohibit discriminatory practices and becoming “a general civility code for the

American workplace.” 148 These limits preserve the “strong medicine” of the mixed-motive burden shift for those cases where the connection between the discriminatory statement and the employment action is more than mere speculation, and confine “motivating factor” analysis to cases where, “at the moment of decision,” 149 it would be reasonable to conclude that the employer had the employee’s protected trait in mind.

150


146 Compare Shorette v. Rite Aid of Maine, 155 F.3d 8, 13 (1st Cir. 1998) (asking an employee “how old he was and when he planned to retire” in an age discrimination case was “a textbook example of an isolated remark which demonstrates nothing”) and Wallace v. Methodist

Hosp. Sys., 271 F.3d 212, 224 (5th Cir. 2001) (decisionmaker’s comment that a female employee

“needed to choose between work and family” reflected a stereotype about women generally but was not evidence of gender discrimination because, made contemporaneously with a favorable performance review, it did “not relate specifically to an employment decision of any kind”) with

Deffenbaugh-Williams v. Wal-Mart Stores, 156 F.3d 581, 590 (telling an employee that she

“would never move up with the company being associated with a black man” in the presence of the decisionmaker bore directly on the employee’s ability to advance in the workplace).

147 See, e.g.

, Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1321, 1323 (11th Cir.

1998) (supervisor’s comments to employee that “[y]ou black girls make me sick, sometimes I feel like just hitting you in the head” and “[y]ou black girls get away with everything” were not evidence of discrimination since disciplinary action against the employee was initiated by someone else); Wallace , 271 F.3d at 212 (supervisor’s statement that the plaintiff was fired because “first of all, she’s been pregnant three times in three years” was not evidence of discrimination since there was no evidence that the supervisor participated in the decisional process).

148 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (U.S. 1998). See, e.g.

,

Wallace , 271 F.3d at 224 (decisionmaker’s comment “how stupid can you be” was not evidence of gender discrimination but “simply denotes a lack of intelligence”).

149 Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989).

150 Still, the “animus plus” position can be manipulated just as the “classic position.” In

Gatsas v. Manchester School District , No. 05-cv-315-SM, 2006 U.S. Dist. LEXIS 81890 (D.N.H.

Nov. 7, 2006), the decisionmaker’s comment that he “would have never hired somebody like [the plaintiff] because she’s a strong . . . woman,” id. at *8 , could have been interpreted as disapproving of an aggressive person and not a woman and would not have satisfied the First

Circuit’s standard that a statement with two plausible interpretations is not “direct evidence” under the “animus plus” position. Id. at *13 (citing Fernandes v. Costa Bros. Masonry Inc., 199

F.3d 572, 583 (1st Cir. 1999)). However the court employed an escape route similar to those used in “classic position” cases, and held that the remark constituted “direct evidence” since “the mere fact that a fertile mind can conjure up some innocent explanation for such a comment does not undermine its standing as direct evidence.” Id.

at *14 (quoting Febres v. Challenger Caribbean

Corp., 214 F.3d 57, 61 (1st Cir. 2000)).



C. The “Animus” Position and its Missing Causal Nexus

Under the “animus” position an employee need only show the presence of discriminatory animus, but that animus does not have to bear directly on the employment decision.

151 The connection is essentially assumed. On its face this definition can subject an employer who has made negative remarks about a protected group to a mixedmotive instruction, and its concomitant burden shift, without establishing the necessary causal connection between the employer’s comment to the adverse employment action required by Price

Waterhouse and section 703(m).

152 Ironically, adopting the use of the

“animus” position for “direct evidence” provides a lower, not higher, evidentiary burden than that required by section 703(m).

153

In practice, just as courts maintaining the “classic” position have found ways to scuttle its rigidity, “animus” courts likewise do not automatically allow any discriminatory comment to preclude summary judgments when the employee fails to establish a casual connection between the comment and the contested employment decision. For instance, in Jalal v. Columbia University 154 an Indian professor’s comment that “you can’t expect a Pakistani to teach the history of

India” 155 clearly reflected a negative stereotype based on Jalal’s national origin, but the district court granted summary judgment for the university because the connection between the Indian professor and the decision to deny Jalal tenure was “highly attenuated.” 156

Jalal dealt with a complicated decision-making process. Tenure candidates were reviewed by a five member committee, whose recommendation was submitted to the provost for a final decision.

157

Jalal contended that individual members of the committee were biased, or were influenced by others who were.

158 The Court commented that

“the various burden shifts . . . shed little, if any, light on the question to be decided.” 159 Nonetheless, Jalal was properly a mixed-motive case given that committee members harbored credible doubts regarding the

151 Fernandes , 199 F.3d at 582. The First Circuit credited the Second Circuit as the only circuit to exclusively adopt the “animus” position. Id .

152 This is the clear implication of the Ninth Circuit’s statement that “a single discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to preclude summary judgment for the employer.” Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir.

2005).

153 It would also provide a lower burden then in McDonnell Douglas cases, which is ultimately why the “animus” position should be rejected. See infra Part IV.A.

154 Jalal v. Columbia Univ., 4 F. Supp. 2d 224 (S.D.N.Y. 1998).

155 Id.

at 239.

156 Id.

157 Id.

at 227.

158 Id.

at 228-41.

159 Id.

at 233.


2008] S T R A Y R E M A R K S 1823 caliber of Jalal’s scholarship.

160 Rather than infer that the biased comments were a motivating factor in the decision to deny Jalal tenure, which the “animus” position adopted by the Second Circuit would have required, 161 the district court unwittingly applied the second prong of the “animus plus” position and dismissed the anti-Pakistani comments because they bore no connection to the contested decision.

162 Jalal demonstrates that “animus” and “animus plus” are two ways of viewing a decisionmaker’s comments. In the presence of a legitimate nondiscriminatory motive, few courts are actually willing to infer that a discriminatory comment automatically indicates that discrimination is a

“motivating factor” under section 703(m).

IV.

A M IXED -M OTIVE S OLUTION : T HE E MPLOYEE C AN S ATISFY THE

M

IXED

-M

OTIVE

B

URDEN WITH A

P

ROXIMITY

T

EST

D

ERIVED

F

ROM THE

C AUSAL C ONNECTION R EQUIREMENT IN R ETALIATION C ASES

A. The Truth About Desert Palace : The Causal Nexus Requiremen Is

Not Only Required by Section 703(m) but Is Inherent in the Mixed-

Motive/Pretext Dichotomy

In the aftermath of Desert Palace several district courts in the

Eighth Circuit created a new unified scheme for all Title VII cases, 163 or relied on Desert Palace to abolish the Pretext/Mixed-Motive dichotomy completely by making all cases mixed-motive.

164 These approaches

160 Id.

at 231.

161 Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 582 (1st Cir. 1999) (identifying the

Second Circuit as adhering to the “animus” position).

162 Jalal , 4 F. Supp. 2d at 239-40.

163 Dunbar v. Pepsi Cola General Bottlers of Iowa, Inc.

, 285 F. Supp. 2d 1180, 1197 (N.D.

Iowa 2003), created the so-called “Modified McDonnell Douglas ” approach, which, before it was repudiated by the Eighth Circuit, was adopted by the Fifth Circuit in Rachid v. Jack in the Box,

Inc.

, 376 F.3d 305 (5th Cir. 2004). Under Rachid the employee can succeed at the final stage of the McDonnell Douglas scheme by demonstrating either (1) that the defendant’s reason is pretextual (pretext alternative) or (2) that it is only one reason for the employment action and discrimination is another (mixed-motive alternative). Id . at 312. This approach is consistent with

Desert Palace , because it allows employees to prevail using circumstantial evidence, although doctrinally, it is not clear why the first two steps of the McDonnell Douglas inquiry should apply to mixed-motive cases. This approach has been criticized because the employee still has to satisfy the elements of a prima facie case even if there is evidence that discrimination motivated the employer. See Wright v. Murray Guard, Inc., 455 F.3d 702, 717 (6th Cir. 2006). Further, it does not aid a mixed-motive employee to force the employer to present nondiscriminatory reasons to explain the adverse employment action, since the purpose of that production is to allow an employee to prove pretext.

164 In Griffith v. City of Des Moines , No. 4:01-CV-10537, 2003 U.S. Dist. LEXIS 14365 (C.D.

Iowa July 3, 2003), the district court agreed with Dare v. Wal-Mart Stores, Inc.

, 267 F. Supp. 2d

987 (D. Minn 2003) in holding that the McDonnell Douglas (pretext)/ Price Waterhouse (mixed


1824 C A R D O Z O L A W R E V I E W [Vol. motive) dichotomy had been abrogated and virtually all Title VII claims could now proceed under section 703(m). See also Jackson v. Catholic Charities, No. 02-1222 (PAM/RLE), 2003 U.S.

Dist. LEXIS 20155 (D. Minn. Nov. 3, 2003) (“[T]he only logical reading of Desert Palace is that its holding applies to both mixed-motive and single-motive cases, and the burden-shifting of

McDonnell Douglas is no longer good law.”); Griffith , 2003 U.S. Dist. LEXIS 14365, at *39

(“This Court agrees with the well-reasoned opinion in Dare and finds that a plaintiff may bring his Title VII claim [under § 703(m)] without being confined to the strictures of the McDonnell

Douglas burden-shifting framework.”); Griffith v. City of Des Moines, 387 F.3d 733, 739-48 (8th

Cir. 2004), reh’g denied , 2004 U.S. App. LEXIS 26374 (8th Cir 2004), reh’g en banc denied ,

2004 U.S. App. LEXIS 26374 (8th Cir. 2004) (Magnusen, J., concurring); Jeffrey A. Van Detta,

“Le Roi est Mort; Vive le Roi!”: An Essay on the Quiet Demise of McDonnell Douglas and the

Transformation of Every Title VII Case After Desert Palace, Inc. v. Costa into a “Mixed-Motives”

Case , 52 D RAKE L.

R EV . 71 (2003); William R. Corbett, McDonnell Douglas , 1973-2003: May

You Rest in Peace?

, 6 U.

P A .

J.

L AB .

& E MP .

L. 199 (2003); Zimmer, supra note 35; Joseph E.

Slater, Michael J. Zimmer, Charles A. Sullivan & Alfred A. Blumrosen, Proof and

Pervasiveness: Employment Discrimination in Law and Reality after Desert Palace, Inc. v. Costa:

Proceedings of the 2005 Annual Meeting, Association of American Law Schools, Sections on

Employment Discrimination, Civil Rights, Labor Relations and Employment Law, and Minority

Groups , 9 E MP .

R TS .

& E MP .

P OL ’ Y J. 427 (2005) [herinafter Proceedings].

This view reasons that since Justice O’Connor’s “direct evidence” requirement was the sole boundary separating the two methods, its abolition has united the two theories under section

703(m). Proceedings , supra , at 439-41; Zimmer, supra note 35, at 1981 (“[A] new, uniform proof structure will evolve from Desert Palace and . . . the approach established in 703(m) will apply to almost all individual discrimination cases.”).

Another reason offered to support this theory is that McDonnell Douglas created a “false dichotomy,” Dare , 267 F. Supp. 2d at 994, which required the employee to prove that discrimination was the “sole basis,” id. at 991, or “sole cause,” Griffith , 387 F.3d at 740 , for the employment decision. This argument reflects a misunderstanding of the standard of causation under McDonnell Douglas , generally described as “but for” or “outcome determinative.” See, e.g.

, Miller v. Cigna Corp., 47 F.3d 586, 588 (3d Cir. 1995) (en banc) (reversing the district court on a jury instruction that discrimination had to be the “sole cause” of the employer’s actions and holding that a discrimination must have a “determinative effect on the outcome” for a non mixedmotive plaintiff).

This reasoning has been described as “a radical approach.” Carey v. Fedex Ground

Package Sys., Inc., 321 F. Supp. 2d 902, 915 (S.D. Ohio 2004). After all, the “Court did not even mention McDonnell Douglas in Desert Palace ,” Cooper v. Southern Co., 390 F.3d 695, 725 (11th

Cir. 2004), which, presumably, it would have had the Court intended to overrule such a “seminal precedent.” Id . One court has even said that it is “wholly inappropriate” to argue that McDonnell

Douglas was somehow overruled in Desert Palace . Van Arkel v. Warren County, 365 F. Supp.

2d 979, 1003 (D. Iowa 2005). Although Griffith did not address these arguments head on, its holding constitutes the clearest repudiation of the view that Desert Palace has somehow ushered in a revolution in employment discrimination law. See also Scott & Chapman, supra note 44 at

406-07; Hedican et al., supra note 17 (arguing that Desert Palace did not affect McDonnell

Douglas ); Steven J. Kaminshine, Disparate Treatment as a Theory of Discrimination: The Need for a Restatement, Not a Revolution , 2 S TAN .

J.

C.R.

& C.L. 1 (2005) (same).

It is clear now that the pretext/mixed-motive dichotomy has survived Desert Palace intact,

L ARSON , supra note 31, §§ 8.04, 8.09, though the preDesert Palace question remains as to how the employee can satisfy the mixed-motive burden. Several circuits have held that the employee

“must present . . . either direct or circumstantial evidence . . . that a protected characteristic was a motivating factor for any employment practice.” Wright , 455 F.3d at 720 (Moore, J., concurring).

Other circuits have also restated formulations from previous case law without attempting to explain how Desert Palace alters the analysis. See Hill v. Lockheed Martin Logistics Mgmt., 354

F.3d 277, 286 (4th Cir. 2004) (“[A]n individual alleging disparate treatment based upon a protected trait must produce sufficient evidence upon which one could find that ‘the protected trait . . . actually motivated the employer’s decision.’” (quoting Reeves v. Sanderson Plumbing

Prod., Inc., 530 U.S. 133, 141 (2000))); Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1068 (9th


2008] S T R A Y R E M A R K S 1825 were rejected by the Eighth Circuit in Griffith v. City of Des Moines , 165 the clearest statement to date that Desert Palace has not revolutionized—indeed, it has barely changed—the employment discrimination landscape. After examining the Supreme Court’s opinion in Desert Palace , the Eighth Circuit concluded in Griffith that

Desert Palace rejected “direct evidence” only as the “converse of circumstantial evidence.” 166 By contrast, the Court explained that under

Eighth Circuit precedent the term “‘direct’ refers to the causal strength of the proof, not whether it is ‘circumstantial’ evidence.” 167 The

Griffith Court further pointed out that Desert Palace grew out of a disputed jury instruction: the employer objected that the court did not instruct the jury that the employee had to present “direct” evidence of discrimination.

168 At the summary judgment stage, however, the

Griffith court clarified that the employee must possess evidence that

“clearly points to the presence of an illegal motive,” and survive

Cir. 2003) (“[T]he plaintiff in any Title VII case may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played a ‘motivating factor.’”). This is, in essence, a restatement of Desert Palace ’s holding, and does not provide any additional guidance in analyzing the employee’s evidence in a mixedmotive case.

Thus, for all the problems sown by the divided decision in Price Waterhouse , it appears that a short, unanimous opinion is equally capably of generating inconsistency and confusion.

While there are good arguments for the mixed-motive burden shift, see supra note 42, Justice

Kennedy’s prediction in his Price Waterhouse dissent that the mixed-motive theory would sow confusion and incorrect decisions has been vindicated by the inability of courts, almost twenty years after the mixed-motive theory was created in Price Waterhouse , to apply a uniform and coherent standard in evaluating the employee’s mixed-motive burden. See Price Waterhouse v.

Hopkins, 490 U.S. 228, 287 (1989) (Kennedy, J., dissenting) (“Today’s creation of a new set of rules for ‘mixed-motives’ cases is not mandated by the statute itself. The Court’s attempt at refinement provides limited practical benefits at the cost of confusion and complexity, with the attendant risk that the trier of fact will misapprehend the controlling legal principles and reach an incorrect decision.”). However, even if the theory ultimately proves unworkable as a legal doctrine, it may still be unsalvageable by the courts, at least in employment discrimination cases brought under Title VII, because the 1991 Act codified the mixed-motive theory.

165 Griffith , 387 F.3d 735.

166 Id . at 736.

167 Id.

The concurring opinion in Wright , 455 F.3d at 718 (Moore, J., concurring), criticizes

Griffith as merely “putting a gloss on the meaning of ‘direct evidence,’” but contends that

Griffith ’s formulation of the employee’s burden is inconsistent with “ Desert Palace ’s multiple statements that ‘no heightened’ or ‘special evidentiary showing is required’ to proceed on a mixed-motive as opposed to a single-motive theory.” Id . On the contrary, this Note contends that the Griffith formulation, requiring a causal connection, is supported by the text and history of section 703(m) discussed in Part II, supra , and by the logic of Price Waterhouse .

168 Griffith , 387 F.3d at 735. The issue in Desert Palace was a challenged jury instruction, challenged by the defendant because it did not include a charge that required the jury to find that the employee had presented “direct evidence” of discrimination. Desert Palace, Inc., v. Costa,

539 U.S. 90, 92 (2003). The Eighth Circuit contended that this discussion had no effect on the employee’s burden of proof at the summary judgment stage. Griffith , 387 F.3d. at 735 (“Desert

Palace . . . decided only a mixed motive jury instruction issue [so it is] an inherently unreliable basis for district courts to begin ignoring this Circuit’s controlling summary judgment precedents

[for mixed motive cases].”).


1826 C A R D O Z O L A W R E V I E W [Vol. summary judgment under the section 703(m) “motivating factor” standard, or “avoid summary judgment by creating the requisite inferences of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext.” 169 This reading of

Desert Palace clearly preserves the McDonnell Douglas /mixed-motive dichotomy at the summary judgment stage.

The causal connection requirement articulated by Griffith is supported by the text and legislative history of section 703(m).

170

Griffith , therefore, provides a starting point for understanding the mixed-motive/ McDonnell Douglas (pretext) dichotomy after Desert

Palace , which is based on two sound premises: (1) Desert Palace left the mixed-motive/ McDonnell Douglas dichotomy intact and (2) a mixed-motive employee must show minimal causation between the employer’s comments or conduct and the adverse employment action.

The Eleventh Circuit has noted that it would be highly unusual for the

Supreme Court to have altered the McDonnell Douglas paradigm in

Desert Palace without even mentioning it.

171 However, a recent case decided by a district court in the Fifth Circuit, Acker v. DeBoer Inc ., 172 illustrates how eliminating the causal connection requirement in mixedmotive cases is tantamount to obliterating the pretext/mixed-motive dichotomy.

173

In Acker , a former employee testified that DeBoer had commented that Acker, a 65 year-old regional sales manager needed to be “put out

169 Griffith , 387 F.3d at 736. McDonnell Douglas creates a legally sufficient presumption so that an employee who can show one thing—that the employment decision was not taken for the reason stated by the employer—does not have to show another thing—that the employment decision was taken because of discriminatory reasons. Cf.

Reeves v. Sanderson Plumbing Prod.,

Inc., 530 U.S. 133, 148 (2000).

170 See discussion supra Part II.

171 Cooper v. Southern Co., 390 F.3d 694, 725 n.17 (11th Circ. 2004) (“[T]he fact that the

Court did not even mention McDonnell Douglas in Desert Palace makes us even more reluctant to believe that Desert Palace should be understood to overrule that seminal precedent.”).

172 429 F. Supp. 2d 828 (N.D. Tex. 2006).

173 Every Circuit to opine on the issue has held that Desert Palace left McDonnell Douglas intact. See, e.g.

, Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005); Strate v.

Midwest Bankcentre, Inc., 398 F.3d 1011, 1018 (8th Cir. 2005); Cooper , 390 F.3d at 725 n.17.

See supra note 164 discussing courts and scholars who initially believed that Desert Palace implicitly repealed McDonnell Douglas . Many courts have pointed to the Supreme Court’s use of McDonnell Douglas in Raytheon Co. v. Hernandez , 540 U.S. 44 (2003), an ADA case, as evidence of McDonnell Douglas ’s continued viability. See Diamond v. Colonial Life & Accident

Ins. Co., 416 F.3d 310, 319 n.5 (4th Cir. 2005) (“[S]ince deciding Desert Palace , the Supreme

Court has continued to invoke the burden-shifting framework in pretext cases.”); Griffith , 387

F.3d at 735; Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 n.3 (1st Cir. 2003); Helfrich v. Lehigh Valley Hosp., No. 03-cv-05793, 2005 U.S. Dist. LEXIS 14792, at *2 n.1 (D. Pa. 2005)

(“Moreover, the Supreme Court case that Helfrich would have this Court interpret as implicitly overruled, McDonnell Douglas v. Green, was definitively cited to, and thus implicitly affirmed, in

Raytheon v. Hernandez . . . a Supreme Court decision handed down approximately six months after Desert Palace.”).


2008] S T R A Y R E M A R K S 1827 to pasture” 174 and that he wanted to find an employee who could run

“faster and leaner” than Acker.

175 Acker’s duties included developing customer data for the company’s sales and marketing efforts in the

Southwest, as well as providing customer assistance, soliciting prospective customers and new business opportunities, and preparing various reports.

176 DeBoer had discovered emails between Acker and a former employee who had gone to work for a competitor and was unsatisfied with Acker’s explanation of those emails.

177 Although

Acker protested that he was a loyal employee, he was unable to create a triable issue as to whether his disloyalty was a pretext for discrimination.

178 Because Acker could not show pretext, the court analyzed DeBoer’s motion for summary judgment under a mixedmotive analysis.

179 Applying the Fifth Circuit’s CSC Logic test, 180 the district court held that those comments, made at least nine months before Acker was terminated, were too remote in time to qualify as

“direct evidence” of discrimination.

181

However, the district court reasoned that because Desert Palace had abolished the “direct evidence” requirement, it should apply a more lenient standard for classifying DeBoer’s remarks.

182 The court relied on the Fifth Circuit’s preDesert Palace holding in Laxton v. Gap

Inc.

, 183 which held that in a McDonnell Douglas (pretext) case a remark

(1) manifesting discriminatory animus and (2) made by a person primarily responsible for the adverse employment decision or with sufficient influence over the decision maker could serve as

“circumstantial evidence” of discrimination.

184

The Laxton approach, designed to evaluate the employee’s evidence in the pretext context, is problematic when applied to a mixedmotive case. This is because it creates a mixed-motive standard that is below the pretext threshold, making it so lenient that no plaintiff would

174 Acker , 429 F. Supp. 2d at 838.

175 Id.

176 Id.

at 834.

177 Id. at 842.

178 Id.

at 844 (“Where an adverse employment decision is based on an employer’s subjective criteria, the relevant inquiry in determining whether the employer’s reason for the adverse action is pretext for unlawful discrimination is not whether the defendant’s reason was ‘true,’ but whether the defendant ‘reasonably believed’ the plaintiff was culpable of the conduct justifying the discharge.”).

179 The district court analyzed the case under the Fifth Circuit’s “Modified” McDonnell

Douglas framework, id.

at 840-47; see discussion supra note 164.

180 See supra notes 137-141and accompanying text.

181 Acker , 429 F. Supp. 2d at 838-40.

182 Id.

at 846 (“At this stage, however, a plaintiff does not have to meet the strict CSC Logic test in order to use discriminatory remarks as circumstantial evidence that his or her protected characteristic was a motivating factor for an adverse employment action.”).

183 333 F.3d 572 (5th Cir. 2003).

184 Acker , 429 F. Supp. 2d at 847 (citing Laxton , 333 F.3d at 583).


1828 C A R D O Z O L A W R E V I E W [Vol. ever need to use McDonnell Douglas . Laxton specifically mentioned that a decisionmaker’s statements manifesting discriminatory animus, albeit unaccompanied by a specific causal showing, “may be used to demonstrate pretext .” 185 In Acker , however, the district court used the employer’s statements, made over nine months before Acker’s termination, as evidence that Acker’s age was a motivating factor in the mixed-motive context.

186 This approach is similar to the “animus” position because it ignores the requirement that there must be a causal nexus between a decisionmaker’s actions and the adverse employment action under section 703(m).

187 Acker assumes that any discriminatory remark creates a reasonable inference that the decisionmaker acted based on a forbidden motive, an unwarranted assumption in mixedmotive cases.

188 This assumption creates the perverse effect of reducing the employee’s mixed motive burden below that required under

McDonnell Douglas , even though an employee who successfully invokes the mixed-motive scheme shifts the burden of persuasion to the defendant. Had the Acker court found in its initial analysis that there was evidence of pretext, the burden to prove “but for” causation would have remained on Acker. It cannot be that an employee who makes a lesser substantive showing gains a greater procedural advantage.

189

185 Laxton , 333 F.3d at 583 (emphasis added).

186 Acker , 429 F. Supp. 2d at 845-47.

187 The “animus” position is discussed, supra , in Part III.C.

188 See supra note 44 and accompanying text, discussing the need to evaluate employer comments based on whether they had a causal effect on the employment decision.

189 Nonetheless this appears to be the approach that the Ninth Circuit has taken, at least at the summary judgment stage. In rejecting the “direct evidence” positions, the Ninth Circuit said that

“there are not two fundamentally different types of Title VII cases” but rather the “employee’s ultimate burden of proof in all cases remains the same: to show by a preponderance of the evidence that the challenged employment decision was ‘because of’ discrimination.” Costa v.

Desert Palace, Inc., 299 F.3d 838, 857 (9th Cir. 2002). This unhelpful formulation is merely a restatement of the operative “because of” language in section 703(a) of Title VII. 42 U.S.C §

2000e-2(a)(1) (2006). See supra text accompanying note 23. The Costa court said that

McDonnell Douglas (pretext) and mixed-motive “are separate inquiries that occur at separate stages of the litigation,” McDonnell Douglas at summary judgment and mixed-motive at the end of trial. Costa , 299 F.3d at 857. In Stegall v. Citadel Broadcasting Company , 350 F.3d 1061 (9th

Cir. 2003), this approach proved unworkable when the employee could not show pretext but nonetheless demonstrated that discrimination was a motivating factor and the panel invoked mixed motive analysis in deciding that summary judgment was improper. Id. at 1072; see id. at

1078 (Gould, J., dissenting) (“The majority’s dicta about mixed motive cases properly has nothing to do with analysis of whether the record before the court when it granted summary judgment showed a genuine issue of fact on pretext.”). The district courts do not appear to have gotten the message either and have continued to apply both theories at the summary judgment stage. See, e.g.

, Adil Lahrichi v. Lumera Corp., No. C04-2124C, 2006 U.S. Dist. LEXIS 18556, at *33 (D. Wash. Mar. 2, 2006) (“Thus, when responding to a summary judgment motion, a Title

VII plaintiff may choose whether to proceed under McDonnell Douglas, the mixed-motives framework, or both.”).

Dominguez-Curry v. Nevada Transportation Department , 424 F.3d 1027 (9th Cir.

2005), the majority came out strongly for the “animus” position in a failure-to-promote gender discrimination case, stating that when “a decisionmaker makes a discriminatory remark against a


2008] S T R A Y R E M A R K S 1829

Rather, the Laxton test only makes sense in the context of proving pretext. When the employee presents evidence that the employer’s nondiscriminatory reason is unworthy of credence and presents a discriminatory comment, a finding of pretext is certainly justified.

Without a viable reason to explain the employer’s action, a discriminatory comment, even one that is nine months old, may be compelling evidence to fill the void that is left when the employer’s nondiscriminatory reason is discredited. But when, as in Acker , the comment is temporally remote from the adverse employment action and the employer’s nondiscriminatory reason is credible, applying the

Laxton test may punish bad thoughts, 190 interfere with the rights of at will employers, 191 or both. Removing the causal nexus requirement for discriminatory comments in cases where the employee cannot show pretext (i.e. in a potential mixed-motive cases) undermines the

McDonnell Douglas scheme by making the employee’s mixed-motive burden so low that it “swallows” the McDonnell Douglas analysis.

192

Therefore, eliminating the causal connection requirement in mixedmotive cases, in addition to skirting the causal showing required by section 703(m), also turns employment discrimination law on its head by eliminating the McDonnell Douglas scheme.

193 member of the plaintiff’s class, a reasonable factfinder may conclude that discriminatory animus played a role in the challenged decision.” Id. at 1038. In Dominguez-Curry the employee could not dispute that the male who received the promotion was more qualified, but the majority argued that under a mixed-motive analysis the discriminatory comments were evidence that discrimination was a motivating factor.

Id. at 1040-42. The male candidate had a bachelor’s degree, attended law school, and possessed relevant experience, while the plaintiff was only a high school graduate who had taken a few classes at vocational school and community college in unrelated subjects. Id . at 1043. The dissent argued that since the male candidate had “vastly superior” qualifications the employer was entitled to summary judgment since the employee did not show a nexus between employer’s sexist remarks and the adverse hiring decision. Id.

at

1043-44 (Callahan, J., dissenting) (“Under a mixed-motive analysis, a plaintiff is required to show that an illicit motive played a causal role in a hiring decision even if other legitimate motives also existed. Here, as the district court found, Dominguez has not disputed Andrews’s qualifications, or denied that Andrews was the best-qualified candidate. Instead, she merely reiterated that Stacey is biased against women. That is not enough. Where, as here, the justification offered by a defendant is that the best-qualified applicant was selected for a job, and the record contains substantial and specific evidence supporting that contention, an alleged illicit motive on behalf of one of the decisionmakers cannot be said to have played a motivating role in the employment decision.”).


191 See supra note 1. In Acker , however, serious harm was avoided since the jury, following a three day trial, returned a verdict for the defense after only 30 minutes of deliberation, finding that Acker did not prove that age was a motivating factor in his dismissal. Thus Acker failed to meet even the slight mixed-motive burden set by the trial court. Jury Verdict, Acker v. DeBoer,

Inc., 05/06 North Texas Reports V-57 (2006) (No. 3:04-CV-1327-R). Therefore, the jury did not even reach the question of whether DeBoer would have made the same decision. Id.

192 Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999). See supra note

103.

193 Any reading of section 703(m) that completely replaces McDonnell Douglas would also render superfluous section 703(a) of Title VII, since all cases would fall under the ambit of the



B. Applying a Proximity Test for Discriminatory Comments to

Establish Minimal Causation in Mixed-Motive Cases

This Note proposes that remarks related to an employee’s protected class and uttered in close proximity to the adverse employment action presumptively satisfy the employee’s mixed-motive burden under section 703(m). This proximity test, which presumes a causal nexus between biased remarks and an adverse employment decision in mixedmotive cases, is imported from the retaliation context.

194 To make out a prima facie case of retaliation an employee must show “a causal connection between the adverse employment action and the protected

[activity that allegedly caused the employer to retaliate].” 195 In cases where there is a close temporal connection between the protected activity and the alleged retaliatory action—generally two months or mixed-motive section 703(m). This point was considered during oral arguments in Desert Palace but was not mentioned in the Court’s opinion:

QUESTION: Does it . . . matter or doesn’t it matter whether you say [section 703](m) governs a separate set of cases [than section 703(a)]? When I came in, I thought the answer to that was no, it doesn’t, that [section 703(a)] governs every case because the cause can govern the two-motive cases too, and that in [section 703](m) Congress was simply clarifying that there could be such cases, and then they go on to say what happens.

But the Government made a very good point and said no, I shouldn’t look at it that way and I should look at it as if [section 703(a)] governs the single-motive [pretext] case and then [section 703](m) comes in to govern the dual-motive [mixed-motive] case.

And that was a good argument too.

Transcript of Oral Argument, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (No. 02-679), 2003

WL 2011040, at *3 (U.S. Apr. 21, 2003). See also Kaminshine, supra note 167, at 44-47

(arguing that section 703(a) and section 703(m) must be read separately to provide for a different standard of causation in pretext and mixed-motive cases).

194 All employment discrimination statutes contain provisions that prohibit retaliation based on the employee’s opposition to discriminatory practices or participation in antidiscrimination proceedings. Title VII’s antiretaliation provision is codified in 42 U.S.C. § 2000e-3(a) (2000) which provides that:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by [Title VII] , or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII] .

Id.

(emphasis added).

195 H AROLD S.

L EWIS & E LIZABETH J.

N ORMAN , E MPLOYMENT D ISCRIMINATION L AW AND

P RACTICE § 2.40 (West 2004). The causal connection requirement is the third prong of the prima facie case: An employee makes out a prima facie case for retaliation by presenting evidence of (1) her participation in proceedings authorized under Title VII or her opposition to practices that she reasonably believes are in violation of Title VII; (2) her employer’s awareness of her participation or opposition; (3) an adverse employment action; and (4) a causal connection between the adverse employment action and the protected participation or opposition. Id .


2008] S T R A Y R E M A R K S 1831 less—the factfinder may infer a causal connection between the two.

196

By contrast, the passage of many months or years between the protected activity and adverse employment action may weaken 197 or defeat 198 a claim for retaliation. However, the causal chain can be broken when there is evidence that the decisionmaker considered taking action against the employee before he or she became aware of the employee’s protected conduct.

199 The Supreme Court has stated that “[e]mployers need not suspend previously planned [decisions] upon discovering that a

Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” 200 There are several reasons why the retaliation prong provides a proper model for mixed-motive employees, and a similar causal chain should be inferred based on the proximity of the employer’s discriminatory comments and the contested employment decision.

First, the level of causation required to make out a prima facie case of retaliation has been described as less than “but for” causation, but nonetheless requires some causal relationship.

201 The level of causation required to establish the causal connection in a retaliation prima facie case is also a minimal causation standard. This showing is sufficient to proceed to the next stage in the inquiry, but not enough to warrant full recovery for the employee. This is closely analogous to the mixedmotive scheme, wherein the employee must establish minimal causation to meet his initial burden but the employer may then limit the

196 Berman v. Orkin Exterminating Co., 160 F.3d. 697 (11th Cir. 1998) (finding two months sufficient to establish causal connection). After two months, courts disagree on the outer limit.

Compare Garrett v. Constar, Inc., No. CA 3:97-CV-2575-R, 1999 U.S. Dist. LEXIS 9361, at *16

(N.D. Tex. May 25, 1999) (finding four months sufficient to demonstrate causal connection) with

Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Circ. 1999) (“We have held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. By contrast, we have held that a three-month period, standing alone, is insufficient to establish causation.”).

197 Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997) (Passage of six months

“weakens the inference of retaliation” but does not foreclose it so long as the employee’s

“evidence is . . . more substantial than a plaintiff who shows only coincidental timing.”).

198 See, e.g.

, Albrechtsen v. Bd. of Regents, 309 F.3d 433, 438 (7th Cir. 2000) (finding passage of at least seven years from protected activity to firing of employee defeated the causal connection, noting that “[a] contention that the events of 1987 to 1991 caused the decisions of

1998 is too farfetched . . . .”).

199 Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (Employer learning of lawsuit filed by employee one month before transferring the employee was “immaterial in light of the fact that [employer] concededly was contemplating the transfer before it learned of the suit.”).

200 Id.

201 Evans v. Houston, 246 F.3d 344, 354 (5th Cir. 2001) (holding that the “causal link” required for a retaliation prima facie case “is not as stringent as the ‘but for’ standard”); Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985) (“[W]e construe the

‘causal link’ element to require merely that the plaintiff establish that the protected activity and the adverse action were not wholly unrelated.”). See Part II.C, supra , explaining minimal causation.


1832 C A R D O Z O L A W R E V I E W [Vol. employee’s relief by prevailing upon the same-decision defense.

Second, both section 703(m) and the retaliation prima facie case reflect similar assumptions about the activity under scrutiny and its relationship to the contested employment action. Under section 703(m) a reference to the employee’s protected trait does not in itself establish a causal connection, but may provide a basis for doing so with additional information.

202 Likewise, in the retaliation context, the employer’s knowledge that the employee is engaged in a protected activity is insufficient to establish a causal connection, but provides a basis for doing so if there is additional evidence or when the protected activity and the adverse employment action occur in close proximity to each other.

203 Both the retaliation and mixed-motive contexts operate under the common sense assumption that that close proximity provides a strong indication that a forbidden consideration—the employee’s protected activity or protected status—remains in the employer’s mind at the time of decision. Still, the test is flexible enough to allow this inference to be rebutted by evidence that the employer was previously considering the contested employment action. Proximity merely acts to create a rebuttable presumption of discrimination and focuses the inquiry by forcing the employer to demonstrate the remark was innocuous and otherwise unrelated to his decision.

Although proximity is one element of the Fifth Circuit’s CSC

Logic Test,

204

its value is unclear because the test’s final requirement— that the remark be related to the employment decision—ultimately renders the other elements of the test meaningless by begging the question. Under the CSC Logic Test a temporally remote comment, whose causal connection to the decision is nonetheless strong, would presumably be inadequate to satisfy the employee’s burden for failing to satisfy the proximity prong. The proximity test remedies this shortcoming. When assessing a stray remark, the court’s only legitimate role is to determine if it might have been related to the employment decision. All the other factors which courts enumerate in evaluating employer comments are simply tools to determine whether the comment is truly a stray remark or does in fact bear upon the employer’s decision. In those cases where the remark is made in close

202 This proposal thus builds on the understanding of minimal causation developed in Part II, supra , and the way in which minimal causation can be properly demonstrated, discussed in Part

III.B-C and Part IV.A, supra . Additionally, applying this proximity test in all antidiscrimination cases, regardless of whether or not they fall under Title VII, will unify the mixed-motive analysis for all antidiscrimination claims. See supra note 16.

203 O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (“Unless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation . . . .”); see also L EWIS & N ORMAN , supra note 195, § 2.04

nn.9-14.

204 See supra notes 137-141 and accompanying text.


2008] S T R A Y R E M A R K S 1833 proximity to the employment action, the proximity test assumes that the two are related. No other factors are necessary. But in cases where the comment is remote it will still serve as adequate evidence of mixedmotives upon a proper causal showing. The comment will not automatically be excluded, although the presumption of causation reserved for temporally proximate remarks will not apply.

Importantly, a proximity test injects much needed clarity into an area of law so confused that near identical fact patterns may well come out differently in different courts. Consider Carter v. Diamondback

Golf Club, Inc.

, 205 a case with an almost identical fact pattern to Acker .

Douglas Carter, a Jehovah’s Witness who worked at a golf club, was fired for “a ‘combination of stuff,’” 206 including complaints by coworkers, greediness for tips, and mistreating customers.

207 Carter could not show that those reasons were pretextual.

208 However, Terry Ulrich, who fired Carter, had told Carter on previous occasions “You Jehovah’s can’t take a joke,” and “[a]ll you Jehovahs [sic] think your morals are better than anyone else.” 209 Then, at the meeting where Ulrich fired

Carter, he told him “to find another place to work conducive to [his] religion.” 210

The district court dismissed the first two comments as isolated remarks, since they were temporally remote from Carter’s termination.

Although the statements were “arguably offensive” they could not

“reasonably support a conclusion that religion was a motivating factor in Carter’s termination.” 211 However, had the Carter court followed

Acker , those comments would have satisfied the Laxton test since they were indicative of discriminatory animus and made by someone with authority over the employment decision.

212 The court in Carter still allowed the case to go to trial on a mixed-motive theory based on the final comment made during Carter’s termination meeting.

213 Initially the district court had granted summary judgment for Diamondback, but the case was vacated and remanded by the Eleventh Circuit in light of

Desert Palace .

214 The Carter court then rejected the “classic” position, which would have required the inference that Ulrich’s comment at the

205 ( Carter I ), No. 8:03-CV-326-T-27MAP, 2006 U.S. Dist. LEXIS 3739 (M.D. Fla. Jan. 31,

2006).

206 Carter I , 2006 U.S. Dist. LEXIS 3739, at *11.

207 Id.

at *18.

208 Id.

at *21.

209 Id.

at *5.

210 Id.

at *23.

211 Id.

at *24.

212 Laxton v. Gap Inc .

, 333 F.3d 572, 583 (5th Cir. 2003). See supra notes 182-184 and accompanying text.

213 Carter I , 2006 U.S. Dist. LEXIS 3739, at *23. (“That Ulric[h]’s statement was made during the termination meeting is significant.”).

214 Id.

at *2.


1834 C A R D O Z O L A W R E V I E W [Vol. termination hearing reflected his reasons for firing Carter and not his concern for Carter’s future employment. Unlike the Acker court, however, the Carter court retained the causal nexus requirement of section 703(m) by crediting only the comment made during the termination meeting as indicative of the employer’s discriminatory motive.

215

Under the proximity test this Note proposes, the common factual scenario presented by Acker and Carter would be easier to adjudicate.

In Acker , the nine-month-old comments would presumptively be insufficient to establish a causal connection, while in Carter the reverse presumption would apply, and comments made contemporaneously with the firing would establish a causal connection. While the court in

Carter noted that “the timing of the statement alone could suggest that religion was a motivating factor in Ulric[h]’s decision,” it was undoubtedly correct to exclude the comments that Ulrich made months before he fired Carter given their temporal remoteness and the intervening complaints about Carter’s conduct.

Another advantage of a proximity test is that it shifts the court’s focus from the severity of the employer’s remarks to their causal significance. This is an important step because seemingly mild, albeit inappropriate comments—such as Ulrich’s comment to Acker that he should “find another place to work conducive to [his] religion” 216 — may be more probative of discrimination than egregious comments causally unconnected with the decision.

217

Finally, the proximity test can reconcile the contradictory assumptions that underlie the “animus” and “animus plus” positions.

218

The “animus” position presumes that an employer who makes a discriminatory remark is likely to act on it, even in the presence of a legitimate nondiscriminatory reason. “Animus plus” makes the opposite assumption, that in the presence of a legitimate nondiscriminatory reason the employer is presumed to have left his

215 Id.

at *23. Unlike in Acker , see supra note 194, the trial court’s decision in Carter was validated by the jury, which found that religion was a motivating factor in Carter’s termination, even though Ulrich would have made the same decision to terminate Carter in the absence of considering his religion. Carter v. Diamondback Golf Club, Inc. ( Carter II ), No. 8:03-CV-326-T-

27MAP, 2006 U.S. Dist. LEXIS 57861, at *3 (M.D. Fla. Aug. 9, 2006).

216 See supra note 210 .

217 Such as in Burton v. Town of Littleton , 426 F.3d 9 (1st Cir. 2005), where the school principal called a former teacher an “old Jew bitch” in a testy phone conversation. Id. at 13. The teacher asked for a mixed-motive analysis, presumably because she could not show the principle’s stated reason for the firing—complaints of physical abuse—were a pretext for age discrimination. Id. at 19. The First Circuit rejected that claim, reasoning that “[e]ven if the repugnant remark was made, no evidence establishes a nexus between the termination of Burton’s employment and any discrimination by the defendants.” Id.

at 20. Since the record lacked any evidence of “pre-termination animus” the First Circuit would not allow a single, post-termination comment to establish that discrimination was a motivating factor. Id.

218 See supra Part III.B-C.


2008] S T R A Y R E M A R K S 1835 biases at the door. The proximity test makes an allowance for the

“animus” position in cases that would fail under “animus plus,” by allowing discriminatory comments to satisfy the employee’s mixedmotive burden when there is a close temporal connection with the adverse employment decision.

219 To put it another way, in cases where there is a close temporal connection, the second prong of the “animus plus” position will be inferred. Conversely, when the time between discriminatory comments and the adverse employment decision becomes more remote, the more stringent “animus plus” position will apply without the presumption of causation.

220

By allocating the risk of error to the employer in cases where the proximity test is satisfied and to the employee in those where it is not, the proximity test strikes a cogent balance in the ever-present tension in employment discrimination law: it preserves the decisional freedom of the at-will employer and increases the likelihood that employees who have been discriminated against will have their day in court.

C

ONCLUSION

In Desert Palace the Supreme Court revisited the mixed-motive theory for the first time since its creation in Price Waterhouse almost fifteen years earlier. Given the difficulty that lower courts have had with Price Waterhouse , 221 the Court missed an opportunity to clarify the employee’s burden in mixed-motive cases and clear up the “murky” 222 line between pretext and mixed-motive cases. Rather than clarify what a mixed-motive employee must show, the Court instead explained one thing that the mixed-motive employee does not have to show: “direct evidence.” Yet with the exception of those courts that rigidly adhered to the classic position, lower courts already understood that circumstantial evidence was permitted in mixed-motive cases so long as it reasonably pointed to a causal connection.

223

219 See supra note 196 and accompanying text.

220 Proponents of the “animus” approach should remember that the employee may still use the remote-in-time comment to prove discrimination under the McDonnell Douglas scheme. It is only when the employer has a credible nondiscriminatory reason that the use of arguably stray remarks becomes problematic.

221 See, e.g.

, Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1182 (2d Cir. 1992) (“Our duty is to follow the Supreme Court’s holding, but with a six-justice majority splintered 4-1-1 in its reasoning, determining the precise holdings of Price Waterhouse is not an easy task.”)

222 Belton, supra note 17, at 663 (“The line between McDonnell Douglas and Price

Waterhouse is very murky.”).

223 See, e.g.

, Tyler , 958 F.2d at 1185 (“Even a highly-probative statement like ‘You’re fired, old man’ still requires the factfinder to draw the inference that the plaintiff’s age had a causal relationship to the decision.”). Judge Posner has insisted that “all knowledge is inferential.”

Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991); see also Sylvester



Unless and until the Supreme Court discards McDonnell Douglas , lower courts must apply a mixed-motive theory which enables employees who are discriminated against based on mixed motives to have their day in court, preserves the freedom of employers in an at-will regime, avoids punishing mere “bad thoughts,” and maintains the pretext/mixed-motive dichotomy at the center of disparate treatment law. This daunting task can be accomplished by applying the proximity test outlined in this Note. v. SOS Children’s Villages Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006) (“[A]ll evidence, even eyewitness testimony, requires drawing inferences . . . . [C]ircumstantial evidence requires a longer chain of inferences, but if each link is solid, the evidence . . . may be more compelling than eyewitness testimony.”).

stray remarks and mixed-motive cases after desert palace v. costa

STRAY REMARKS AND MIXED-MOTIVE CASES

AFTER DESERT PALACE V. COSTA : A PROXIMITY

TEST FOR DETERMINING MINIMAL CAUSATION

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stray remarks and mixed-motive cases after desert palace v. costa

STRAY REMARKS AND MIXED-MOTIVE CASES

AFTER DESERT PALACE V. COSTA : A PROXIMITY

TEST FOR DETERMINING MINIMAL CAUSATION

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