In a case of first impression, the U.S. Court of Appeals for the Third Circuit in Makky v. Chertoff, considered “whether a plaintiff’s prima facie case in a mixed motive Title VII employment discrimination action fails if it is irrefutable that plaintiff does not meet a necessary objective qualification for the job.” In Makky, an Egyptian-born aviation security researcher brought a mixed-motive discrimination claim after his security clearance was revoked and he was placed on unpaid suspension.

The Third Circuit agreed that “[t]he McDonnell Douglas burden-shifting framework does not apply in a mixed-motive case in the way it does in a pretext case because the issue in a mixed-motive case is not whether discrimination played the dispositive role, but merely whether it played ‘a motivating part’ in an employment decision.” The court held, however, that, at a minimum, the plaintiff had to establish that he was minimally eligible for the position that he lost. The court found that Makky had failed to rebut the objective evidence that he was not qualified for the position because he lost his security clearance.

In so doing, the court stated, “We limit our consideration to the need for the plaintiff to show his or her qualification, and specifically objective qualification, for the job. We hold today that a mixed-motive plaintiff has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain. In this respect at least, requirements under Price Waterhouse do not differ from those of McDonnell Douglas."