ABBOTT FINAL 4/29/2005 6:14 PM 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 ABBOTT FINAL 574 4/29/2005 6:14 PM The Journal of Corporation Law [Spring 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. ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 575 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 ABBOTT FINAL 576 4/29/2005 6:14 PM The Journal of Corporation Law [Spring 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). ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 577 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. ABBOTT FINAL 578 4/29/2005 6:14 PM The Journal of Corporation Law [Spring 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 ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 579 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. ABBOTT FINAL 580 4/29/2005 6:14 PM The Journal of Corporation Law [Spring 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”). ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 581 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. ABBOTT FINAL 582 4/29/2005 6:14 PM The Journal of Corporation Law [Spring 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. ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 583 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”). ABBOTT FINAL 584 4/29/2005 6:14 PM The Journal of Corporation Law [Spring 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)). ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 585 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). ABBOTT FINAL 586 4/29/2005 6:14 PM The Journal of Corporation Law [Spring 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). ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 587 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). ABBOTT FINAL 588 4/29/2005 6:14 PM The Journal of Corporation Law [Spring 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. ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 589 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). ABBOTT FINAL 590 4/29/2005 6:14 PM The Journal of Corporation Law [Spring “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. ABBOTT FINAL 2005] 4/29/2005 6:14 PM A Swing and a Miss 591 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.