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A Swing and a Miss: The U.S. Supreme Court’s Attempt to
Resolve the Confusion over the Proper Evidentiary Burden
for Employment Discrimination Litigation in Costa v. Desert
Palace
Michael Abbott
I. INTRODUCTION ..................................................................................................... 573
II. BACKGROUND ...................................................................................................... 574
A. The Evolution of Modern Employment Discrimination Law.......................... 574
B. Circumstantial Evidence and the Pretext Analysis ........................................ 575
C. Price Waterhouse and the Mixed-Motives Test.............................................. 578
D. The Distinction Between “Pretext” and “Mixed-Motives” ........................... 579
E. The Effect of the 1991 Amendments ............................................................... 581
III. DISCUSSION .......................................................................................................... 582
A. An Opportunity for Resolution ....................................................................... 582
B. The Supreme Court’s Decision ...................................................................... 583
IV. ANALYSIS ............................................................................................................. 585
A. The Merits of the Costa Decision .................................................................. 585
B. Lower Courts’ Interpretation of Costa........................................................... 587
V. RECOMMENDATION .............................................................................................. 589
A. Possible Motivations for the Resistance......................................................... 589
B. The Necessity of a Clear Rule ........................................................................ 590
VI. CONCLUSION ........................................................................................................ 590
I. INTRODUCTION
Since the Supreme Court’s opinion in Price Waterhouse v. Hopkins,1 the judicial
system has been rife with confusion over the correct evidentiary standard to apply in
“mixed-motive”2 cases of employment discrimination.3 Price Waterhouse was a plurality
1. 490 U.S. 228 (1989).
2. Employment discrimination cases are often categorized as either “mixed-motive” or “single-motive.”
A plaintiff brings a “single-motive” case when it alleges that, in taking an adverse employment action, the
defendant-employer was motivated solely by the plaintiff’s membership in a protected class (an illegitimate
consideration). See generally MICHAEL J. ZIMMER ET AL., CASES AND MATERIALS ON EMPLOYMENT
DISCRIMINATION (5th ed. 2000). In contrast, “mixed-motive” cases are proper when the defendant-employer’s
actions were motivated by both legitimate and illegitimate factors. Id.
3. See Recent Cases: Employment Law—Discrimination—Ninth Circuit Finds for Employee in a MixedMotive Case Without “Direct Evidence” of Discrimination—Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir.
2002) (en banc), cert. granted, 123 S. Ct. 816 (2003), 116 HARV. L. REV. 1897, 1897 (2003) (citing Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1182 (2d Cir. 1992)) [hereinafter Recent Cases] (stating that “[o]ur
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decision with Justices O’Connor and White issuing concurring opinions. This amalgam
presented three distinct explanations of a plaintiff’s evidentiary burden in establishing a
prima facia case of employment discrimination under Title VII. While many courts have
determined that Justice O’Connor’s opinion requiring a plaintiff to establish its case by
proving that illegitimate factors played a “substantial role” in the defendant’s
employment decision with “direct evidence,” other courts have held plaintiffs to a much
lesser burden.4 In 2003, the United States Supreme Court granted certiorari in Desert
Palace, Inc. v. Costa.5 Costa provided the Court with a golden opportunity to resolve the
confusion plaguing Title VII cases. In a short eight-page opinion, the Court concluded
that “direct evidence” of discrimination was not required in order to bring a case under
the “mixed-motive” analysis.6 Unfortunately, as evidenced by subsequent decisions
applying Costa, this area of law remains unsettled.
This Note examines the inability and what appears to be resistance to resolving the
confusion surrounding the disparate treatment7 cause of action. Part II outlines the
evolution of individual employment discrimination and provides a detailed history of
how the judicial system has attempted to deal with this “quagmire.”8 Part III details the
Court’s holding and reasoning in Costa to provide a basis for its effect on Title VII. Part
IV identifies and interprets the opinion’s effect and points out areas where confusion
remains. This Part also analyzes the lower courts’ subsequent treatment of the Costa
decision. Part V attempts to identify the reasons for the courts’ inability and resistance to
clarification of this area of law with a special emphasis on economic factors. Finally, Part
VI suggests several “clear cut” alternatives to the current system, hypothesizes on
whether these alternatives are necessary, and speculates on whether these alternatives
would encounter resistance.
II. BACKGROUND
A. The Evolution of Modern Employment Discrimination Law
As part of its effort to deal with the “pervasive problem”9 of employment
discrimination, Congress ratified Title VII of the Civil Rights Act of 1964.10 Title VII
made it illegal for an employer to “fail or refuse to hire or to discharge any individual, or
otherwise discriminate against any individual . . . because of such individual’s race, color,
initial problem is created by the various Price Waterhouse opinions”).
4. Id.
5. 539 U.S. 90 (2003).
6. Id. at 101.
7. A plaintiff establishes liability under Title VII using either the disparate treatment or disparate impact
theory of employment discrimination. EEOC v. Inland Marine Indus., 729 F.2d 1229, 1233 (9th Cir. 1984).
While claims of disparate impact focus on employment practices that, while facially neutral, impact one Title
VII protected class “more harshly . . . than another and cannot be justified by business necessity,” disparate
treatment claims center around employment practices enacted with the intent to treat (either more or less
favorably) one Title VII class differently from another. Id. (emphasis added).
8. See infra note 111.
9. ZIMMER ET AL., supra note 2, at 85.
10. Id.
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religion, sex, or national origin.”11 Enacted for the purpose of maintaining stable,
productive work environments, Title VII protects employees by providing a civil remedy
for workplace discrimination.12 This protection is hampered, however, because of the
judicial system’s inability to devise a clear test to resolve the statutory requirement that,
to be in violation of Title VII, an adverse employment action must have occurred
“because of” the plaintiff-employee’s membership in a protected class.13 Specifically,
since employers rarely act with blatant discriminatory intent, the courts have been unable
to resolve the amount and type of evidence necessary to establish a discriminatory
animus.14 The result of this confusion is that employees are left without a clear
understanding of the evidentiary requirements necessary to prove the existence of
discrimination and satisfy the requirements to survive summary judgment.15
B. Circumstantial Evidence and the Pretext Analysis
In the 1973 landmark case of McDonnell Douglas Corporation v. Green,16 the
U.S. Supreme Court attempted to allay this confusion by creating the pretext analysis for
litigating employment discrimination cases based on circumstantial evidence.17 The
pretext analysis consists of shifting evidentiary burdens between the plaintiff, who is
attempting to prove a prima facie case of discrimination, and the defendant, who is trying
to show a legitimate nondiscriminatory reason for the adverse action.18 In McDonnell
Douglas, the plaintiff, a black civil rights activist, was discharged from his position after
taking part in a protest outside the defendant’s plant.19 The defendant also rejected
plaintiff’s application for rehire after subsequent protests resulted in the need for
additional qualified mechanics.20 The plaintiff filed suit in the Federal District Court of
Missouri, alleging that his discharge and the defendant’s refusal to rehire him were
racially motivated and in violation of Title VII of the Civil Rights Act of 1964.21 The
defendant contended, however, that plaintiff’s discharge was not racially motivated but
was instead based on his participation in “disruptive and illegal activity.”22 The case was
11. 42 U.S.C. § 2000e-2(a)(1) (1994).
12. Jason Long, Advocating “Pretext Plus”: The Impact of Reeves v. Sanderson Plumbing Products, Inc.
on the Shifting Evidentiary Burden Framework, 51 U. KAN. L. REV. 629, 629 (2003).
13. See id. at 632.
14. For example, employers rarely take action as blatant as that in Slack v. Havens, 522 F.2d 1091 (9th
Cir. 1975). In Slack, several black factory workers brought suit against defendant industry’s plant after they
were discharged for refusing to perform dangerous work that was clearly outside their job descriptions.
Moreover, only black factory workers were required to take part in this work and all white employees in the
affected departments were transferred to other departments within the plant. In finding a “definite causal
relation between [the] discriminatory conduct and the firings,” the Ninth Circuit relied upon direct evidence
consisting of statements by a factory supervisor that “[c]olored folks are hired to clean because they clean
better” and “[c]olored people should stay in their places.” Id. at 1092-93.
15. Long, supra note 12, at 629.
16. 411 U.S. 792 (1973).
17. ZIMMER ET AL., supra note 2, at 114.
18. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Long, supra note 12, at 630.
19. McDonnell Douglas, 411 U.S. at 764-95.
20. Id. at 792.
21. Id. at 796.
22. Id. at 794. (Plaintiff was fired after taking part in a “stall-in” where teams of cars blocked main access
roads leading into defendant’s plant. Police arrested the “stall-in” participants and charged them with
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appealed to the U.S. Supreme Court in an effort to resolve the “order and allocation of
proof” in disparate treatment claims brought with circumstantial evidence.23
Writing for a unanimous Court, Justice Powell established the following burden
shifting pretext analysis for employment discrimination cases. Under this pretext
analysis, the plaintiff has the initial burden of establishing a prima facia case of
discrimination.24 A plaintiff can successfully establish a prima facie case by showing (1)
membership in a protected class;25 (2) that “he applied and was qualified for a job for
which the employer was seeking applicants; (3) that, despite his qualifications, he was
rejected; and (4) that, after his rejection, the position remained open and the employer
continued to seek applicants.”26
After a plaintiff has successfully established a prima facia case of discrimination, the
burden of proof shifts to the defendant to “articulate some legitimate, nondiscriminatory
reason” for the adverse employment action.27 For example, the defendant in McDonnell
Douglas asserted that it fired the plaintiff because of his participation in an illegal
activity, not because of his race.28 Since illegal actions are not protected by Title VII,29
the defendant was attempting to avoid liability by establishing that its motivation was
valid.30 Lastly, the burden shifts back to the employee to show that the defendant’s
proffered reason for the adverse employment action was mere pretext for
discrimination.31 In McDonnell Douglas, the Supreme Court remanded the issue of
pretext to the district court to reconsider whether the plaintiff’s discharge was racially
motivated.32
However, as noted by Jason Long,33 the McDonnell Douglas decision was fraught
with ambiguity.34 Specifically, the McDonnell Douglas Court failed to clearly set forth
the defendant employer’s burden for establishing the existence of a legitimate
nondiscriminatory reason.35 As a result, some lower courts interpreted McDonnell
Douglas to require the defendant employer to establish its nondiscriminatory reason by a
preponderance of the evidence.36 In addition, confusion existed as to both the type and
quantity of evidence the plaintiff needed to provide to meet its burden of showing that the
defendant’s articulated reason was mere pretext for discrimination.37
obstructing traffic. Plaintiff pled guilty to the charge and was ordered to pay a fine for his actions.).
23. Id. at 800.
24. McDonnell Douglas, 411 U.S. at 801.
25. See 42 U.S.C.A § 2000e-2(a)(1) (2000) (stating that an employer cannot discriminate against an
individual “because of such individual’s race, color, religion, sex, or national origin”).
26. McDonnell Douglas, 411 U.S. at 802.
27. Id. at 802-03.
28. Id. at 803-04.
29. See 42 U.S.C.A § 2000e-2(a)(1) (2000) for a list of protected characteristics and actions.
30. McDonnell Douglas, 411 U.S. at 804.
31. Id.
32. Id. at 807.
33. Long, supra note 12, at 629.
34. Id. at 635.
35. Id.
36. Id.; Kenneth R. Davis, The Stumbling Three-Step, Burden-Shifting Approach in Employment
Discrimination Cases, 61 BROOK. L. REV. 703, 711 (1995).
37. Davis, supra note 36, at 711 (discussing how the Court’s failure to provide specific guidance has
resulted in confusion amongst the lower courts attempting to apply the decision).
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The Supreme Court has taken several steps to clarify its holding in McDonnell
Douglas and solidify the evidentiary requirements at each stage of the pretext analysis.38
First, in Texas Department of Community Affairs v. Burdine,39 the Court held that the
plaintiff’s “[e]stablishment of [a] prima facie case in effect creates a presumption that the
employer unlawfully discriminated against the employee.”40 The Court went on to state
that, “if the employer is silent in the face of the presumption, the court must enter
judgment for the plaintiff.”41 The Court also clarified the evidentiary requirements for a
defendant’s proffered nondiscriminatory reason as a “burden of production” that need not
be proved by a preponderance of the evidence.42 Rather, the defendant’s “burden of
production” is met when it has established a “genuine issue of [material] fact as to
whether it discriminated against the plaintiff.”43 Lastly, the Court stated that “[t]he
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.”44 The plaintiff
can satisfy this burden by either (1) producing direct evidence of the employer’s
discriminatory motivation or (2) presenting a sufficient amount of indirect evidence to
lead a trier of fact to infer that the defendant’s articulated nondiscriminatory reason is
mere pretext.45 However, as noted by Jason Long, Burdine failed to resolve the confusion
surrounding the weight of pretextual evidence in the third stage of the McDonnell
Douglas framework.46 Courts were split as to whether a successful showing of pretext
required a ruling in the plaintiff’s favor.47 Some courts held that showing pretext by a
preponderance of the evidence meant that the court must find in favor of the plaintiff
while others “held that this evidence merely allowed courts to find in the plaintiff’s
favor.”48 Therefore, because of the continued confusion over the proper interpretation of
the McDonnell Douglas test,49 the U.S. Supreme Court addressed the issue for a second
time in St. Mary’s Honor Center v. Hicks.50
In St. Mary’s, the U.S. Supreme Court resolved the confusion surrounding the
plaintiff’s evidence of pretext. The Court held that “[t]he plaintiff’s evidence of
pretext . . . does not negate the employer’s proffered reason. It merely rebuts the
credibility of the defendant employer so that intentional discrimination may be
inferred.”51 The Court also noted that the plaintiff at all times bears the burden of proving
38. Long, supra note 12, at 635-36; Brian W. McKay, Mixed Motives Mix-Up: The Ninth Circuit Evades
the Direct Evidence Requirement in Disparate Treatment Cases, 38 TULSA L. REV. 503, 505-07 (2003).
39. 450 U.S. 248 (1981).
40. Id. at 254.
41. Id. (emphasis added).
42. Id. at 256-58.
43. Id. at 254-55.
44. Burdine, 450 U.S. at 253.
45. See Long, supra note 12, at 636; Burdine, 450 U.S. at 256.
46. Long, supra note 12, at 636.
47. Id. (citing David J. Turek, Affirming Ambiguity: Reeves v. Sanderson Plumbing Products, Inc. and the
Burden-Shifting Framework of Disparate Treatment Cases, 85 MARQ. L. REV. 283, 290-91 (2001)).
48. Id.
49. Id. at 637.
50. 509 U.S. 502 (1993).
51. Long, supra note 12, at 637.
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discrimination.52 To meet this burden, the McDonnell Douglass/Burdine/Hicks test
allows the plaintiff to use circumstantial evidence “to create inferences that a protected
trait was a reason for the [adverse] employment decision.”53
C. Price Waterhouse and the Mixed-Motives Test
Before Price Waterhouse,54 all employment discrimination litigation proceeded
under the theory that the employer’s action was motivated by a single reason.55 The Price
Waterhouse decision established the possibility that an employer’s actions could be
motivated by both discriminatory and legitimate reasons.56 In Price Waterhouse, a
female member of defendant’s accounting firm brought suit after she was denied
partnership.57 The Court found that defendant had based its decision on both a legitimate
concern about plaintiff’s interpersonal skills and illegitimate sex stereotypes.58
Specifically, several partners resisted plaintiff’s promotion to partner because of her
“gruff, masculine demeanor.”59
In a plurality opinion, the Court held that a plaintiff’s initial burden of proof is
satisfied upon a showing that discriminatory animus was a “motivating part” in the
adverse employment action.60 The plurality also stated that a defendant can avoid
liability only by establishing that “its legitimate reason, standing alone, would have
induced it to make the same decision.”61 The Supreme Court ultimately remanded the
case to the lower court to determine if the defendant “would have made the same decision
even if it had not taken the plaintiff’s gender into account.”62
Although Justices White and O’Connor agreed with the plurality that a plaintiff
should be entitled to bring a claim of discrimination where the defendant acted with
several legitimate and illegitimate motives, Justice O’Connor favored stricter evidentiary
requirements than did the plurality.63 Justice O’Connor’s concurrence stated that, in order
to succeed, a plaintiff must establish that the defendant’s discriminatory motive was a
“substantial factor” in its employment decision.64 Moreover, Justice O’Connor required
the employee to prove the “substantial factor” using “direct evidence.”65 Because it is
arguably the narrowest ground, many courts believe that Justice O’Connor’s “substantial
factor through direct evidence” test represents the holding in Price Waterhouse.66
52. McKay, supra note 38, at 507.
53. See id. at 507.
54. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
55. Kelly Pierce, A Fire Without Smoke: The Elimination of the Direct Evidence Requirement For MixedMotive Employment Discrimination Cases in Costa v. Desert Palace, 87 MINN. L. REV. 2173, 2179 (2003).
56. See Price Waterhouse, 490 U.S. at 228.
57. Id. at 231.
58. Id. at 234-36.
59. Id. at 235.
60. Id. at 258.
61. Price Waterhouse, 490 U.S. at 246.
62. Id. at 258.
63. Id. at 265-66.
64. Id. at 276.
65. Id.
66. See Marks v. United States, 430 U.S. 188, 193 (1977) (stating that “when the Supreme Court rules by
means of a plurality opinion, inferior courts should give effect to the narrowest ground upon which a majority
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Unfortunately, Price Waterhouse has only added to the confusion surrounding
employment discrimination litigation. First, courts cannot agree on whether the opinion
of Justice O’Connor or the plurality represents the true holding.67 Second, courts
following Justice O’Connor’s reasoning are left without a definition of “direct
evidence.”68
D. The Distinction Between “Pretext” and “Mixed-Motives”
To make matters worse, after Price Waterhouse, courts were presented with two
distinct paths to the disparate treatment analysis. Given a plaintiff’s proffered evidence,
courts had to decide whether to employ the McDonnell Douglas “pretext” test or the
Price Waterhouse “mixed-motives” analysis. Tyler v. Bethlehem Steel Corp.,69 provides
a good example of the high level of complexity and confusion surrounding the post-Price
Waterhouse disparate treatment cause of action. In Tyler, a forty-eight-year-old general
products salesman brought an age discrimination suit against Bethlehem Steel alleging
that the company had used age as a criterion in its lay-off decisions.70 On an appeal from
the United States District Court for the Western District of New York over the proper
jury instruction, the Second Circuit noted the “murky water” that clouded this area of
law.71 To decide whether the lower court’s “Price Waterhouse instruction” was valid, the
Second Circuit waded through a lengthy analysis of: (1) the distinctions between a
“pretext” and “mixed-motives” case; (2) the precedential effects of the Price Waterhouse
opinions; and (3) the definition of “direct evidence.”72
In its attempt to distinguish between the “pretext” and “mixed-motives” methods,
the court noted that under a “mixed-motives” analysis, “the plaintiff must initially show
more than the ‘not onerous’ McDonnell Douglas-Burdine factors.”73 Specifically, instead
of persuading the fact-finder that either a “discriminatory reason more likely than not
motivated the employer, or . . . that the employer’s proffered explanation is unworthy of
belief,” the “mixed-motives” test requires a plaintiff to “focus his proof directly at the
question of discrimination and prove that an illegitimate factor had a ‘motivating’ or
‘substantial’ role in the employment decision.”74 The court concluded that “[i]f the
plaintiff convinces the factfinder that the illegitimate factor played such a role, the
[plaintiff] has proved that the [allegedly discriminatory action] was made at least in part
‘because of’ the illegitimate factor.”75 Here, the court seems to base its distinction
between a “pretext” and “mixed-motives” case not on the number of motives that the
employer had in taking the employment action, but rather on the type of evidence the
of the Justices supporting the judgment would agree”).
67. See Benjamin C. Mizer, Note, Toward a Motivating Factor Test for Individual Disparate Treatment
Claims, 100 MICH. L. REV. 234, 239-42 (2001).
68. Id.
69. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir 1992).
70. Id. at 1179.
71. Id. (referring to the uncertainty surrounding the correct application of the Price Waterhouse and
“burden shifting” approaches to employment litigation).
72. Id. at 1180.
73. Id. at 1181.
74. Tyler, 958 F.2d at 1181.
75. Id.
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plaintiff is able to present. However, as discussed below, the court failed to draw any
clear distinction between the evidentiary requirements of the two methods. In fact, the
court noted that “it is possible to analyze all motivation cases . . . using only the dual
motivation approach.”76
In addition to its attempt at distinguishing between the “pretext” and “mixedmotives” analysis leading to more similarities than differences between the two methods,
the court also struggled in determining the true holding of Price Waterhouse.77 Like
many other courts presented with this issue, the Tyler court relied upon the “narrowest
grounds” test set forth in Marks v. United States.78 Unlike other courts, the Tyler court
found that Justice O’Connor’s “substantial factor” with “direct evidence” requirement
was not supported by the majority in Price Waterhouse and therefore not essential to the
“mixed-motives” analysis.79 However, the court also acknowledged that “most circuits
have engrafted [the direct evidence] requirement into caselaw.”80 Perhaps even more
interesting is the fact that in prior cases, the Second Circuit adopted Justice O’Connor’s
reasoning and stated that direct evidence is required for a plaintiff to establish that an
illegitimate factor played a role in an employment decision.81 The court seemed to
reconcile its differing positions by altering its previous definition of “direct evidence.”
Before Tyler, the Second Circuit defined “direct evidence” similarly to most other courts,
as “non-circumstantial evidence.”82 In Tyler, the court shifts its view of what constitutes
“direct evidence” by stating that “‘[d]irect’ and ‘indirect’ describe not the quality of the
76. Id. at 1185. Here, “dual motivation” refers to the “mixed-motives” analysis while “all motivation
cases” refers to both the “pretext” and “mixed-motives” methods. After stating that the “mixed-motives”
analysis works in both types of discrimination cases, the court also noted that the parties’ evidentiary burdens
are slightly different in a single-motive (“pretext”) case than a case alleging “mixed-motives.” For a singlemotive case, the plaintiff must raise an “inference of unlawful motivation” while a “mixed-motives” case
requires the plaintiff to prove the existence of an unlawful motive. The court based this observation on the
similarities between the last step of the McDonnell Douglas/Burdine analysis and the plaintiff’s initial burden
under the Price Waterhouse test. Id.
77. Id. at 1182.
78. Marks v. United States, 430 U.S. 188 at 193 (1977).
79. Tyler, 958 F.2d at 1183. The court reasoned that neither the four justice plurality nor Justice White, in
representing the majority of the Court, supported the proposition that direct evidence be required in the “mixedmotives” analysis. The court based this finding on language in Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)
emphasizing the need to find a “common ground shared by five or more justices.” The Tyler court found that
while Justice O’Connor’s opinion shared “some common ground” with the plurality, Justice White’s differed
only as to “specifics.” The Tyler court failed to consider whether its interpretation of the Price Waterhouse
holding represented the decision based upon the “narrowest grounds.” See Fernandes v. Costa Bros. Masonry,
Inc., 199 F.3d 572, 580 (1st Cir. 1999) (applying the Marks test and finding that Justice O’Connor’s opinion
expresses the holding in Price Waterhouse); Randle v. La Salle Telecomm., Inc., 876 F.2d 563 (7th Cir. 1989);
Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307 (7th Cir. 1989); see also McKay, supra note 38, at 504,
stating that “[t]he key to differentiating between pretext cases and mixed motives cases [is] the direct evidence
requirement.” In Recent Cases, supra note 3, at 1904, the author points out that “Price Waterhouse exposes a
flaw in the ‘narrowest grounds’ doctrine: namely, its failure to recognize the importance of the fifth vote.”
80. Tyler, 958 F.2d at 1183.
81. Id. (citing Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989)); Jund v. Town
of Hempstead, 941 F.2d 1271, 1289 (2d Cir. 1991); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116
(2d Cir. 1991)).
82. Tyler, 958 F.2d at 1183 (stating that direct evidence “is described as evidence tending to show, without
resort to inference, the existence of a fact in question”).
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evidence presented, but the manner in which the plaintiff proves his case.”83 Here, the
court determined that a plaintiff proves his case “indirectly” by employing the burdenshifting McDonnell Douglas/Burdine approach and “directly” by using the Price
Waterhouse analysis.84 Tyler presents a good example of the confusion caused by the
Price Waterhouse decision.85 Furthermore, the Second Circuit is not alone in its
confusion: while some circuits continue to apply the strict bifurcated approach originated
by the Supreme Court, several circuits have shifted away and analyze all disparate
treatment cases under the Price Waterhouse theory.86 In addition, many circuits have
expanded the definition of “direct evidence.”87 The inability of courts to determine the
true holding in Price Waterhouse has created a system of differing standards and high
levels of uncertainty for the parties involved in employment disputes.
E. The Effect of the 1991 Amendments
In 1991, Congress responded to several recent Supreme Court decisions that
weakened civil rights laws by passing a series of amendments to the Civil Rights Act.88
In addition to providing a statutory basis for disparate impact law, it appeared that the
new amendments also represented Congress’s attempt to resolve some of the confusion
created by the Court in Price Waterhouse.89 Congress addressed the Price Waterhouse
issue by codifying the “motivating-factor” test in section 703(m)90 and changing the
remedies once available for a defendant who has successfully proven the “same decision”
defense.91 Although the amendments clarified the existence of the “mixed-motives”
analysis, they failed to provide any guidance on the correct definition of “direct
evidence.”92 Additionally, the amendments provided little clarification on the distinction
83. Id. at 1185. Here, the court also noted that “direct evidence” was an “unfortunate choice of
terminology for the type of proof needed to establish a ‘mixed-motives’ case.” Id.
84. Id.
85. For other examples, see Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995) (further blurring the
distinction between “pretext” and “mixed-motives” by holding that a discriminatory motive does not have to be
the “sole cause” of an employer’s action for a plaintiff to bring a case under the theory of “pretext,” thereby
opening the door for “pretext” claims based upon mixed motives); Ezold v. Wolf, Block, Schorr and SolisCohen, 983 F.2d 509, 522 (3d Cir. 1992) (utilizing a “pretext” analysis in a case analogous to Price Waterhouse
on the theory that “[t]he issue in this case is ‘whether illegal or legal motives, but not both, were the ‘true’
motives behind the [partnership] decision’”). Here, the court takes a different approach than most courts and
distinguishes between the two models not by the number of motives asserted, but by the type of assertion the
plaintiff makes about the defendant’s “true” motivation. Id.
86. ZIMMER ET AL., supra note 2, at 203.
87. Id. at 204.
88. Id. at 385; McKay, supra note 38, at 508; 42 U.S.C. § 2000 (2000).
89. McKay, supra note 38, at 508-09.
90. 42 U.S.C. § 2000e-2(m) (2000). This section states that a plaintiff has established a prima facia case of
discrimination by “demonstra[ting] that race, color, religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also motivated the practice.”
91. See 42 U.S.C. § 2000e-5(g)(2)(B)(ii) (2000) (stating that if the defendant is able to show that it would
have taken the same action absent any consideration of plaintiff’s membership in a protected class, then the
court “shall not award damages.” However, the plaintiff is still entitled to some remedies such as injunctive
relief and attorney’s fees.).
92. See Pierce, supra note 55, at 2185-86.
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between a “pretext” and “mixed-motives” analysis.93 Therefore, although the 1991
amendments helped solidify the disparate treatment cause of action, they fell short of
providing guidance to help courts navigate the ever growing sea of confusion.
III. DISCUSSION
A. An Opportunity for Resolution
In 2003, the United States Supreme Court granted certiorari for the Ninth Circuit
case Costa v. Desert Palace.94 Costa presented an opportunity for the Court to settle the
confusion it created in Price Waterhouse and establish a uniform test for disparate
treatment cases. Finally, the Court had an opportunity to decide the proper definition of
“direct-evidence” and whether it is required to establish an action using the “mixedmotives” analysis. However, this task has proved more onerous than some have
imagined.95
After being fired from her job as a warehouse worker at Caesars Palace Hotel in
1994, Catherine Costa filed suit against her former employer in the United States District
Court for the District of Nevada.96 In her Title VII complaint, Ms. Costa alleged that
Caesars Palace had wrongfully based its decision to fire her, at least in part, on her
gender.97 Costa was the sole female employee working at defendant’s warehouse and
was fired after an altercation with another employee.98 Caesars Palace claimed that it had
fired Costa because of her poor disciplinary record. Caesars Palace had reprimanded
Costa several times before this final altercation.99 However, in addition to claiming that
she was the target of obscene remarks and had experienced “unjustifiably harsh
punishments,” Costa contended that her lengthy disciplinary record was further evidence
of defendant’s discrimination towards women.100 The jury agreed with Costa’s
arguments and awarded her a substantial amount in damages for her gender
discrimination claim.101 Caesars Palace appealed the judgment to the Ninth Circuit
contending that the district court judge erred in his instructions to the jury. Specifically,
Caesars took issue with the district court judge’s instruction that the jury was allowed to
consider all evidence, not just “direct evidence,” when it evaluated Costa’s “mixedmotives” claim.102 The Ninth Circuit panel vacated in part, reversed in part, and
remanded the district court’s decision.103 The Ninth Circuit panel believed that Justice
93. Id. at 2183.
94. Desert Palace, Inc. v. Costa, 537 U.S. 1099 (2003).
95. See Recent Cases, supra note 3 (noting that “Costa could become one of the Court’s jurisprudential
masterpieces—an opinion in which substance mirrors form”).
96. Id. at 1898.
97. Costa v. Desert Palace, Inc., 268 F.3d 882, 885 (9th Cir. 2001), rev’d en banc, 299 F.3d 838 (9th Cir.
2002).
98. Id. at 884-85.
99. Id. at 884.
100. Id. at 889. (citing Costa’s claim that her numerous “write-ups” were a result of her supervisors’ bias
against women).
101. Costa, 299 F.3d at 846.
102. Id. at 885-86.
103. Id. at 891.
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O’Connor’s “direct-evidence” requirement represented the holding in Price Waterhouse
and determined that Costa had failed to meet this burden.104 However, on a rehearing en
banc, the Ninth Circuit affirmed, reversed and remanded in part.105 The majority of the
Ninth Circuit disagreed with the panel and concluded that the 1991 amendments to the
Civil Rights Act had “wholly abrogated” Justice O’Connor’s heightened evidentiary
burden.106 The majority took a plain meaning interpretation of Title VII and reasoned
that the statute’s silence as to any special evidentiary requirements meant that none were
required.107 The dissent disagreed with this interpretation of the statute.108 Instead, the
dissent believed that “Congress, in amending Title VII, did not respond at all to Justice
O’Connor’s direct evidence requirement,”109 thereby leaving the requirements set forth
in Price Waterhouse unchanged.110 The Ninth Circuit’s treatment of Costa provides yet
another example of how the debate over evidentiary requirements can easily turn a Title
VII case into a “quagmire,”111 furthering the need for a clarifying opinion from the
Supreme Court.
B. The Supreme Court’s Decision
Writing for the majority of the Court in Costa, Justice Thomas declared that
plaintiffs need not present direct evidence of discrimination to receive a “mixed-motive”
instruction.112 Like the majority in the Ninth Circuit’s en banc hearing, the Court
concluded that “[s]ection 2000e-2m unambiguously states that a plaintiff need only
‘demonstrat[e]’ that an employer used a forbidden consideration with respect to ‘any
employment practice.’”113 The Court went on to state that “[o]n its face, the statute does
not mention, much less require, that a plaintiff make a heightened showing through direct
evidence.”114 Surprisingly, like the Ninth Circuit, the Supreme Court declined to address
which of the Price Waterhouse opinions was controlling.115 Instead, the Court
concentrated on the proper statutory interpretation of section 2000-e(m) and based its
decision on: (1) the clear intent of Congress; (2) the “conventional” rules of civil and
criminal litigation; and (3) the “normal” rules of statutory construction.116
First, the Court noted that, by explicitly defining the term “demonstrates” in the Act,
Congress left “little doubt that no special evidentiary showing [was] required.”117
104. Id. at 889.
105. Id. at 865.
106. Costa, 299 F.3d at 850.
107. Id. (referring to 42 U.S.C. § 2000e-2(m) (2000)).
108. Id. at 866.
109. Id.
110. See Recent Cases, supra note 3, at 1900-01. In employing its plain meaning analysis, the majority
declined to “enter the debate” over the actual holding in Price Waterhouse. Id. at 1900. The dissent, however,
believed that Justice O’Connor’s opinion represented the holding of the court. Id. at 1901.
111. Costa, 299 F.3d at 851.
112. Desert Palace, Inc. v. Costa, 539 U.S. 90, 91 (2003).
113. Id. at 98.
114. Id. at 98-99.
115. Id at 98.
116. Id. at 99-101.
117. Costa, 539 U.S. at 99 (stating that “Title VII defines the term ‘demonstrates’ as to mee[t] the burdens
of production and persuasion”).
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Specifically, the Court believed that if Congress intended for the “burdens of production
and persuasion” to be met only by some heightened evidentiary showing, it would have
made this intent clear by including it in the 1991 Act.118 The Court reasoned that
Congress’s “failure [to include language describing heightened evidentiary burdens] is
significant” because “Congress has been unequivocal when imposing heightened proof
requirements in other circumstances.”119
The Court found further support for its decision in the fact that “Title VII’s silence
with respect to the type of evidence required . . . suggests that we should not depart from
the [c]onventional rule[s]” of both civil and criminal litigation.120 The “conventional
rule” requires a plaintiff to prove his case “by a preponderance of the evidence” for civil
cases and to state its case “beyond a reasonable doubt” in criminal trials.121 The rule
provides that these burdens may be met using either direct or circumstantial evidence.122
In fact, the Court mentions the “utility of circumstantial evidence” and that it is
“‘intrinsically no different from testimonial evidence.’”123 The Court drove the final nail
into the Petitioner’s argument that a litigant desiring a “mixed-motives” instruction be
restricted to direct evidence by noting that the “law makes no distinction between the
weight or value to be given to either direct or circumstantial evidence.”124
Finally, the Court found yet more support for its analysis by employing the “‘normal
rule of statutory construction that identical words used in different parts of the same act
are intended to have the same meaning.”125 Here, the Court relied on the fact that other
provisions of Title VII using the term “demonstrates” do not require direct evidence.126
Based upon this inference, the Court held that it is “logical to assume that [like terms]
would carry the same meaning” when used in the same Act.127
Lastly, in what might be interpreted as an effort to save face, Justice O’Connor
penned a concurring opinion wherein she defended the merits of employing a “directevidence” requirement before the enactment of the Civil Rights Act of 1991.128 Justice
O’Connor seemed to state that the “direct evidence” requirement was necessary because a
successful showing “triggered ‘the deterrent purpose of the statute’” which permitted a
factfinder to conclude that “‘the employer’s discriminatory motivation “caused” the
employment decision’” without any further inquiry or information.129 If nothing else, the
Supreme Court’s opinion should settle the debate plaguing the lower courts about
whether the 1991 Civil Rights Act represented a new evidentiary rule for “mixed-motive”
cases. Moreover, the majority’s opinion, at least initially, seemed to resolve the confusion
118. Id.
119. Id. (citing as examples of Congress’s “unequivocal” language 8 U.S.C. § 1158(a)(2)(B) (2002) and 42
U.S.C. § 5851 (b)(3)(D) (2000) which require a demonstration by “clear and convincing evidence”).
120. Costa, 539 U.S. 90 at 99.
121. Id..
122. Id.
123. Id. (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
124. Id.
125. Costa, 539 U.S. 90 at 101 (quoting Comm’r v. Lundy, 516 U.S. 235, 250 (1996)).
126. Specifically, the Court points to 42 U.S.C. §§ 2000e-2(k)(1)(A)(i) (2000) and 2000e-5(g)(2)(B) (2000)
which contain the term “demonstrates” yet do not require the use of direct evidence. Costa, 539 U.S. at 99-100.
127. Id. at 2155.
128. Id. (O’Connor, J., concurring).
129. Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 275 (1989)).
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that had existed ever since Price Waterhouse.
IV. ANALYSIS
A. The Merits of the Costa Decision
In addition to settling the debate over the effects of the 1991 amendments, the
Court’s holding made major headway in alleviating the confusion surrounding Title VII
litigation. However, as discussed below, the water might still be a little murky in some
areas. For example, Brian McKay argues that the abolition of the direct evidence
requirement will “shift the balance of Title VII litigation” and burden employers with
frivolous litigation.130 McKay believes that this will occur because the elimination of the
direct evidence requirement will effectively do away with the stricter requirements of the
McDonnell Douglas framework and allow all plaintiffs “to take advantage of the mixed
motives jury instruction.”131 Here, McKay points out one of the weaknesses in the
Court’s opinion in Costa—its failure to address the effects on the present bifurcated
structure of individual employment discrimination analysis.132 McKay makes a strong
argument that the abolition of the direct evidence requirement will likely hamper
defendants in their ability to present compelling justifications for their actions.133 For
instance, following the methodology adopted by the Ninth Circuit in Costa and perhaps
silently affirmed by the Supreme Court,134 the “single-motive” framework is only
applicable when the evidence “support[s] one of only two possible conclusions—that
discrimination was the sole reason or it played no part at all in the adverse employment
decision.”135 McKay suggests that although this is a “theoretical possibility,” it cannot
occur because “[o]nce the employer introduces any evidence that the [adverse
employment] action was based on some legitimate reason . . . the action becomes a mixed
motives case.”136 This in turn opens the door for the plaintiff to receive the advantages
provided under the “mixed-motives” framework.137 Instead of eliminating the direct
evidence requirement, McKay would have preferred the Court to better define it and
preserve the bifurcation between the two frameworks.138
However, although McKay’s suggestion preserves the separate Price
Waterhouse/McDonnell Douglas framework, it creates the following unworkable
situation that is avoided by doing away with the requirement altogether. Imagine a simple
130. See McKay, supra note 38, at 503.
131. Id. at 518.
132. Id.
133. Id. at 518-19.
134. The Court’s opinion makes no mention of the Ninth Circuit’s findings on this issue.
135. McKay, supra note 38, at 518 (suggesting that the “mixed-motives” instruction is only given when the
evidence shows that discrimination was either “zero percent or one hundred percent of the reason for the
adverse employment decision”).
136. Id. at 519.
137. After the 1991 Civil Rights Amendments, the “mixed-motives” framework as codified in section
703(m) was significantly more plaintiff-friendly than the “single-motive” framework as it downgraded the
“same decision” defense to a meager limitation on remedies. See ZIMMER ET AL., supra note 2, at 385-449.
138. See McKay, supra note 38, at 520-28 (discussing the different definitions of direct evidence developed
by the courts and suggests a workable definition).
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gender discrimination claim wherein the plaintiff is claiming that her former employer
took gender into account in its decision to fire her. Using the method described above, the
court will determine which framework to employ not by looking at the number of
motives being asserted for the action, but instead by the type of evidence presented. First,
if after reviewing the evidence, the court finds it insufficient to warrant a “mixedmotives” instruction, the court will simply go forward under the McDonnell Douglas
framework. If, however, the court determines that some,139 but not all, of the evidence
meets the proffered definition of direct evidence, the court will proceed using the “mixedmotives” framework. Herein lies the problem: in instructing the jury, the court will now
have to give both “motivating factor” and “McDonnell Douglas” instructions and instruct
the jury on which evidence it can consider under each framework. If the jury, using only
that evidence defined as direct, finds that the plaintiff has met her burden under
703(m),140 it can proceed under the “mixed-motives” framework and further analyze the
defendant’s “same decision” defense.141 However, if the jury finds that the plaintiff has
failed to meet this burden, it must continue the analysis under the McDonnell Douglas
703(a)142 framework considering all of the evidence. Although this method might seem
probable, in reality, given the complexity of having to apply and discard evidence
throughout its deliberation, a jury cannot be expected to comprehend, let alone apply this
“multi-burden” approach. Moreover, the level of difficulty is further heightened by the
need to distinguish between direct and indirect evidence.143 This approach would place a
significant amount of power in the hands of the judiciary because judges would make the
ultimate determination as to the classification of evidence. Therefore, in a practical sense,
had the Court attempted to define direct evidence, it would have led to the possibility of
even more confusion surrounding the proper classification of evidence.
Because of this, it seems like the Supreme Court’s decision to abolish the direct
evidence requirement will go farther toward clearing the confusion than any attempt to
define it. But what will happen to McDonnell Douglas? The Ninth Circuit’s majority
opinion in Costa suggests that the two frameworks can “coexist in harmony in Title VII
analysis because they are performed at different stages of the litigation.”144 However,
Kelly Pierce posits that the elimination of the direct evidence requirement will result in a
merger of single and mixed motive cases.145 As indicated by the example above, courts
that require direct evidence usually segment disparate treatment cases on the basis of the
plaintiff’s proffered evidence.146 After the elimination of the evidentiary distinctions,
these courts are left without a method of determining the appropriate framework. Pierce
suggests that “the number of motivations behind a challenged employment action should
139. Here, “some evidence” would be enough evidence to enable a trier of fact to conclude that
discrimination was a motivating factor.
140. See supra note 39 and accompanying text.
141. See supra note 39 and accompanying text.
142. 42 U.S.C. § 2002-2(a) (2000).
143. See Pet. Br. No. 02-679, 2003 WL 742558 at *42-49 (Feb. 27, 2003) (discussing jury instructions).
144. McKay, supra note 38, at 517 (citing Costa v. Desert Palace, Inc., 299 F.3d 838, 857 (9th Cir. 2002))
(The court is suggesting that the McDonnell Douglas analysis is utilized during summary judgment.).
145. See Pierce, supra note 55, at 2205-06.
146. Id. (citing Costa, 299 F.3d at 852-53).
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determine which of the two sections—703(a) or 703(m)—applies.”147 This approach
seems logical, especially from a plain-meaning interpretation of the statute. But, as Brian
McKay points out, this approach will likely inhibit a defendant’s ability to defend its
conduct with legitimate reasons.148 In fact, Pierce also acknowledges this phenomenon
and suggests that the diminishing importance of McDonnell Douglas is necessary given
the evolution of “modern discrimination.”149 There might even be another way to
harmonize the McDonnell Douglas and “mixed-motives” doctrines. The McDonnell
Douglas test could be utilized in a “mixed-motives” analysis as a method of showing that
many of the defendant’s proffered reasons for taking the adverse employment action were
pretextual.150 Here, the number of non-pretextual motives remaining after the McDonnell
Douglas test would determine whether the cause of action is analyzed as a “singlemotive” or “mixed-motives” case. For example, consider the simple discrimination claim
described above wherein the plaintiff alleges that her employer discharged her on account
of her gender. In addition, assume that the defendant-employer rebuts the plaintiff’s
position by stating that it fired the plaintiff because of her poor performance and hostile
behavior towards authority. Instead of directly employing the “mixed-motives” test
because of the three offered motivations for the plaintiff’s discharge, under this approach,
the court would instead analyze each of the defendant’s proffered reasons under the
McDonnell Douglas test to see if they are pretextual for discrimination. Next, the court
can proceed in one of two ways. First, if all of the defendant’s reasons are found to be
pretextual, the court could choose to employ the “single-motive” framework and instruct
the jury under 703(a)’s “because of” requirement. On the contrary, the number of nonpretextual motives notwithstanding, the court could proceed under the “mixed-motives”
framework of 703(m) wherein the factfinder would determine whether the employer, in
discharging the plaintiff, was motivated by her gender. Therefore, although it harmonizes
the two theories, this view still does little to explain the relationship between 703(a) and
703(m). Unfortunately, after waiting almost fifteen years for the mystery surrounding
direct evidence to be solved, there is no telling when the confusion over this relationship
will be resolved.
B. Lower Courts’ Interpretation of Costa
The fact that Costa did little to resolve this confusion is clearly evidenced by the
application of the Court’s holding by the several District and Circuit courts that have
followed the opinion. In a recent retaliation case brought under Title VII by a former
female sales manager against her employer, the United States District Court in the
District of Maine found that, since “no possibility of a mixed motive for the defendant’s
actions . . . is raised by the evidence . . . the recent decision of the Supreme Court in
147. Id. at 2207.
148. McKay, supra note 38, at 519.
149. See Pierce, supra note 55, at 2208-09 (noting that while modern discrimination is usually “premised
on a number of interrelated factors that are often products of unconscious bias,” earlier patterns of
discrimination were “more overt”).
150. Interview with Jill Gaulding, Associate Professor, The University of Iowa College of Law in Iowa
City, Iowa (Sept. 4, 2003).
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Desert Palace Inc. v. Costa . . . does not apply.”151 It appears that the district court
followed the methodology discussed above by Pierce. However, as both Pierce and
McKay point out, this methodology is illogical because the defendant’s “legitimate
nondiscriminatory reason”152 has the effect of turning a single motive case into one of
mixed motives.153 In another case, the United States District Court in the Southern
District of Iowa applied Costa in its critique of the proper standard for summary
judgment in employment discrimination cases.154 Although the court is a little unclear in
its language, it seems to suggest that Costa “changed the burden-shifting landscape at the
summary judgment stage” for both single and mixed motive discrimination suits.155
Specifically, the court said that “Title VII plaintiffs are no longer bound by the strictures
of the McDonnell Douglas framework,” instead, a “plaintiff must simply demonstrate
that a genuine issue of material fact exists as to whether or not race was a motivating
factor.”156
In the United States District Court for the Northern District of Ohio, Western
Division, the court refused to apply Costa to discrimination cases based upon race.157
Instead, the court chose to employ the familiar McDonnell Douglas burden-shifting
approach.158 Furthermore, the United States District Court in the District of Minnesota
noted recently that it, along with the Eighth Circuit, has “declined to decide whether
[Costa] alters the burden-shifting analysis of McDonnell Douglas.”159 Finally, the United
States District Court for the Northern District of Illinois, Eastern Division recently
applied Costa in a manner similar to the method described above in Part IV.B as
proper.160 The court harmonized the Costa decision with a case brought under the
McDonnell Douglas single motive framework, stating that if “an employee can raise an
inference of discrimination by satisfying the initial elements of the prima facia case,161
an employer may not . . . escape liability altogether by offering an alternative
explanation . . . [o]nce the alleged discriminatory motive [can] be viewed . . . as a
motivating factor.”162 Therefore, it seems that upon the plaintiff’s successful completion
of the McDonnell Douglas test, his case then “transforms” into a 703(m) case wherein the
defendants’ “proffer of a legitimate, nondiscriminatory justification would [only]
arguably affect the . . . remedies available, . . . but not the [defendant’s] underlying
151. Davis v. Emery Worldwide Corp., 267 F. Supp. 2d 109, 120 n.2 (D. Me. 2003) (granting defendant’s
motion for summary judgment).
152. McKay, supra note 38, at 506.
153. See supra notes 147-148.
154. See Griffith v. City of Des Moines, No. 4:01-CV-10537, 2003 WL 21976083 (S.D.Iowa 2003)
(upholding defendant’s motion for summary judgment).
155. Id. at *1.
156. Id. (citing Dare v. Walmart, 2003 WL 21382493, at *4 (D.Minn. 2003)).
157. Bolander v. BP Oil Co., No. 3:02CV7341, 2003 WL 22060351, at *3 (N.D. Ohio 2003) (granting
defendant’s motion for summary judgment).
158. Id.
159. Mohamed v. Sky Chefs, Inc., No. Civ. 02-225(JNE/JGL), 2003 WL 22083294, at *2 (D. Minn. 2003)
(citing Allen v. City of Pocahontas, 340 F.3d 551, 557 n.5 (8th Cir. 2003)).
160. Thomas v. Chrysler Fin., LLC., 278 F. Supp. 2d 922 (N.D Ill. 2003) (granting defendant’s motion for
summary judgment); see supra note 150 and accompanying text.
161. See supra note 26 and corresponding discussion.
162. Thomas, 278 F. Supp. 2d at 926.
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liability.”163
V. RECOMMENDATION
A. Possible Motivations for the Resistance
One might question whether there are any benefits to this uncertainty. Initially, it
seems as though both plaintiff-employees and defendant-employers would be best served
under a law with a high level of certainty. This would allow defendants to treat
employment discrimination claims as business decisions, deriving settlement offers based
upon statistical probabilities of success. Of course, this begs the question whether
discrimination should ever be considered as a business decision. In addition, a clearer
law might motivate employers to develop stricter discrimination policies.164 Since firms
are driven to maximize shareholder revenue, a clear law might induce firms to take
greater care in combating discrimination because they will have a better understanding of
both the actions which are illegal, and the ramifications of those actions.165 For instance,
under a clear law, a firm employing standard quantitative decision-making techniques166
might find that the expected cost167 of litigation is higher than the cost of implementing
an anti-discrimination program because of the increased probability of a plaintiff’s
success. Here, the clear law benefits the corporation (and arguably the plaintiff-employee
as well) because it enables the corporation to more adequately predict the costs associated
with discrimination suits, thereby reducing overhead expenses and increasing shareholder
wealth. However, one could argue that the defendant-corporation would also favor an
unclear law because, given its greater access to resources, it will be better able to employ
these resources to convince a court to decide in its favor. Lastly, a level of uncertainty
affords plaintiffs with bona fide, yet “weak” discrimination claims a greater chance that
their claims will succeed past summary judgment. Therefore, some corporations and
potential plaintiffs will likely argue against clear judicial interpretations of the
evidentiary requirements in disparate treatment actions because of the benefits each
group derives from the current confusion.
This in turn leads one to question whether a clear standard should be adopted since
many employees—who are part of the group that Title VII was enacted to protect—will
likely favor the uncertainty associated with the current law. However, despite the
contingency of employees and employers who might arguably favor the current law
because of its ability to be manipulated, this uncertainty inhibits Title VII from fully
serving its purpose; to maintain stable, productive work environments free of
discrimination.168 Furthermore, as discussed below, a clear law that harmonizes the
163. Id.
164. A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 115-18 (2003) (noting that
legal rules can be modified to produce an outcome in line with efficient behavior).
165. Id.
166. See HARNETT & HORRELL, DATA, STATISTICS, AND DECISION MODELS WITH EXCEL 3, 14-17 (1998)
(on file with author).
167. Id. at 14-17.
168. See Long, supra note 12, at 630 (discussing evidentiary burden of discrimination cases).
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“McDonnell Douglas” and “mixed-motives” doctrines169 will create an incentive for
employers to act in accordance with this purpose.
B. The Necessity of a Clear Rule
Economic analysis can be used to illustrate how resolving the dispute over
evidentiary requirements furthers the purpose of Title VII. As mentioned above in Part
V.A., a clear law that funnels all employment discrimination cases through a “mixedmotives” analysis170 should have the effect of raising an employer’s opportunity cost of
discrimination litigation.171 Specifically, the introduction of greater certainty to the
employer’s statistical analysis172—especially given that it would be unable to wholly
escape liability even with a successful execution of the “same decision defense”—creates
a greater incentive for the employer, acting in an economically efficient manner, to avoid
this type of litigation.173 Since the legal system operates like a market in that it relies on
an individual’s economic self-interest for deterrence,174 a well-defined law with a greater
probability of employer liability would create an incentive for employers to take action to
insure against discrimination.
An economic analysis suggests that a clear rule—or at least a rule with greater
certainty—is essential because, by increasing the probability of losing in litigation, it
raises the costs of discrimination to the employer. This increase in cost should alter the
employer’s value calculation so, whereas it might have once been more efficient175 for a
corporation to not monitor for discrimination and instead litigate or settle its handful of
discrimination claims, a shift in the probability of a plaintiff’s success should hopefully
make it more efficient for corporations to avoid, rather than litigate, employment
discrimination. Therefore, the adoption of a more clear-cut rule, perhaps similar to the
rule suggested in Part IV.A which harmonizes the “McDonnell Douglas” and “mixedmotives” techniques, would help enforce the purpose of anti-discrimination laws such as
Title VII—to abolish discrimination and maintain discrimination-free work
environments. Economically, this can be accomplished by raising the cost of
discrimination to a point where it cannot be rationally justified.
VI. CONCLUSION
Although Costa settled the long debate over whether direct evidence is required
in “mixed-motive” discrimination cases, it has not resolved all of the confusion plaguing
this area of the law. The effect of Costa on the McDonnell Douglas analysis remains
unsettled. However, there are ways to harmonize both frameworks into a single
methodology and at least one district court seems to have identified the possibility.
Specifically, the court employed a version of the method recommended by this Note in
169. See supra note 149 and accompanying text.
170. Using the method set forth in the text accompanying supra note 150.
171. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 519-20 (4th ed. 1992) (comparing legal and
market allocation).
172. See id.
173. Id.
174. Id.
175. Id.
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Part IV.A by using the McDonnell Douglas test within a “mixed-motives” analysis to
determine if any of the defendant’s proffered non-discriminatory reasons were
pretextual.176 Several of the methods of harmonization will likely be met with resistance
because, by funneling every discrimination claim through a “mixed-motives” analysis,
the defendant, even if it is able to offer a non-discriminatory justification or successfully
employ the “same-decision defense,” is unable to completely escape liability.
Despite the fact that certainty in this area of the law would allow defendantcorporations to treat employment discrimination as a business decision deriving
settlement offers based upon statistical probabilities of success, there are some benefits to
be derived from uncertainty. However, the benefits afforded to plaintiffs with bona fide,
yet “weak” discrimination claims do not outweigh the positive effects that resolving the
uncertainty over evidentiary requirements has on aligning the law with the purpose of
Title VII. Overall, with lower courts already making their own differing interpretations of
Costa’s effects, it appears that the only thing clear in the area of employment
discrimination law is the existence of confusion.
176. See supra note 150.