It is well known that Title VII of the federal Civil Rights Act of 1964 makes it unlawful for an employer to discriminate on the basis of an individual’s race, color, religion, sex, or national origin. In the 1991 Civil Rights Act, Congress amended Title VII to provide that an employer may be liable for discrimination if race, color, religion, sex, or national origin was “a motivating factor for any employment practice,” even if the employer would have made the same decision in the absence of the discriminatory motivation.
The 1991 amendments to the Civil Rights Act spawned a new species of “mixed motive” claims, which rest on the theory that the employer based an adverse employment decision on both a permissible reason and an unlawfully discriminatory one. An employer found to have a “mixed motive” cannot escape liability for discrimination, but may be able to limit the remedies available to the plaintiff for a Title VII violation. But what kind of evidence is required for a plaintiff to overcome summary judgment on a “mixed motive” theory of discrimination?
On July 3, 2008, the U.S. Court of Appeals for the Sixth Circuit (which covers Ohio, Michigan, Kentucky and Tennessee) addressed this question in White v. Baxter Healthcare Corporation, No. 07-1626, 2008 U.S. App. LEXIS 14188, 2008 FED App. 0242P (6th Cir. July 3, 2008). After White, a Title VII plaintiff in this Circuit can defeat an employer’s summary judgment motion by providing either direct or circumstantial evidence that discrimination was more likely than not a motivating factor in the adverse employment action.
Facts of the White Case
Todd A. White, an African-American, worked as a sales representative for Baxter Healthcare Corporation for more than six years. After receiving recognition on several occasions for his outstanding sales performance, Mr. White applied for a Regional Manager position in September 2004. He was the only African American who applied and the only one of the five candidates with a Masters degree in Business Administration.
Instead of promoting Mr. White, Baxter hired Maggie Freed, the only woman who interviewed for the position and the only applicant who had not previously been a Baxter sales representative. Mr. White received a downgraded performance evaluation several months later, which resulted in a smaller pay increase than his performance arguably warranted. Additionally, Mr. White noticed that his new manager made several discriminatory remarks against African Americans, including one instance in which the manager said, “nobody wants to be around a black man.”
Mr. White sued Baxter, alleging two race discrimination claims. First, Mr. White argued that Baxter failed to promote him to the Regional Manager position because of his race (a “single-motive” claim). Second, he claimed that race was a motivating factor in his manager’s decision to downgrade his 2004 performance evaluation (a “mixed-motive” claim). Mr. White supported his claims with circumstantial, rather than direct, evidence.
The trial court granted summary judgment in Baxter’s favor. On appeal, a major issue in the case was what evidentiary standard to apply to Mr. White’s mixed-motive claim. The appeals court ruled in Mr. White’s favor and, in doing so, signaled a change in the way mixed-motive cases are adjudicated at the summary judgment stage in the Sixth Circuit.
Summary Judgment Evidence in Mixed-Motive Cases— Direct or Circumstantial Evidence?
Long before the 1991 Civil Rights Act, a plaintiff in a “single-motive” discrimination case could prove his or her claim by direct or circumstantial evidence. “Direct evidence” is the kind that, if believed, requires a conclusion that unlawful discrimination motivated the employer’s decision. The paradigmatic example of “direct evidence” would be the employer expressly stating that the employee’s race, color, religion, sex, or national origin motivated the employment decision in question.
In the absence of “direct evidence,” the plaintiff in a single-motive case typically follows the familiar “McDonnell Douglas/Burdine” framework (as established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248) of establishing a case by circumstantial evidence in order to defeat summary judgment. Under this framework, the plaintiff must first ascertain a “prima facie case” by establishing that he or she (1) is a member of a protected class (i.e., race, color, sex, or national origin), (2) was qualified for the job, (3) suffered an adverse employment action, and (4) was replaced by a person outside the protected class or was treated differently from a similarly situated person outside the protected class. If the plaintiff succeeds in doing this, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the employer meets this burden, the plaintiff can survive summary judgment by demonstrating that the employer’s reason is merely a pretext for discrimination.
In the years following the enactment of the 1991 Civil Rights Act, many federal courts developed a different analytic framework for “mixed-motive” claims. The prevailing view in the federal courts (including the Sixth Circuit) required a Title VII plaintiff to show “direct evidence” of unlawful discrimination in order to overcome summary judgment.
Then came the United States Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). In Desert Palace, the Supreme Court held that a plaintiff is not required to produce direct evidence of discrimination at trial in order to allow the jury to consider a “mixed motive” claim. To the contrary, the Supreme Court established that a plaintiff could prove a mixed-motive case with circumstantial evidence. Since Desert Palace was decided, the federal courts have grappled with the inevitable question that arose from that case: what kind of “mixed motive” evidence must a plaintiff produce in order to avoid summary judgment in the employer’s favor at the pretrial stage?
Mixed-Motive Plaintiffs Do Not Need to Show “Pretext”
In the White decision, the Sixth Circuit observed that the federal courts had varying interpretations of Desert Palace’s effect on mixed motive claims at the summary judgment stage of litigation. In particular, the Sixth Circuit identified the varying views on what role—if any—the McDonnell Douglas/Burdine burden-shifting framework had in mixed-motive cases in which the plaintiff relied on circumstantial evidence to prove discrimination. After considering various decisions from courts around the country that had addressed the issue, the Sixth Circuit adopted the view that the McDonnell Douglas/Burdine framework does not apply to mixed-motive claims at the summary judgment stage.
Rather than rely on the burden-shifting framework, the Sixth Circuit held that a Title VII plaintiff can survive summary judgment on a mixed-motive claim by producing evidence “sufficient to convince a jury” that (1) an adverse employment action occurred and (2) race, color, religion, sex or national origin was a motivating factor for the action. Contrary to the Sixth Circuit’s pre-Desert Palace line of cases, the plaintiff no longer needs to provide direct evidence of discrimination to withstand summary judgment on a mixed-motive theory.
Applying this new standard in Mr. White’s case, the Sixth Circuit had no trouble finding that he suffered an adverse employment action for purposes of his mixed-motive claim—namely, the downgraded performance evaluation that affected his compensation. The appeals court also found that Mr. White had presented sufficient evidence from which a jury could conclude that his race was a motivating factor in his performance evaluation. In addition to presenting evidence of his manager’s race-based comments, Mr. White presented evidence that he was evaluated under a different set of performance criteria than other Baxter sales representatives.
Mixed-Motive Claims After White— What Happens Now?
The Sixth Circuit’s holding in this case theoretically lessens a plaintiff’s burden to defeat a motion for summary judgment in a mixed-motive case, making it more likely that mixed-motive claims will go to trial. Indeed, in a separate opinion, Judge Ronald Gilman observed that Mr. White’s claim “would most certainly fail” had the court employed some variation of the McDonnell Douglas/Burdine burden-shifting framework. The Sixth Circuit’s new standard may therefore motivate more plaintiffs to add “mixedmotive” claims to their discrimination complaints, to take advantage of what may appear to be a lesser evidentiary standard.
But the Sixth Circuit’s ruling is not all gloomy for employers, nor is it all rosy for potential mixed-motive plaintiffs. Even though the Sixth Circuit recognized that many more mixed motive cases might survive summary judgment as a result of its ruling, Judge Gilman noted in his concurring opinion that the new standard “leaves ample room for courts” to decide that summary judgment is warranted when “no reasonable jury could conclude that a protected characteristic was a motivating factor.” And even if mixed-motive cases go to trial, it should be remembered that mixed-motive liability can be different in important respects from liability in single-motive cases. While a plaintiff who prevails under a mixed-motive theory may obtain declaratory relief, injunctive relief, and recover his or her attorney’s fees for pursuing the mixed-motive claim, the plaintiff may not obtain damages or reinstatement if the employer can prove that it would have taken the same action in the absence of the impermissible discriminatory motive.