The New Discrimination Law: Price Waterhouse is Dead, Whither Mcdonnell Douglas?

Abstract

In Desert Palace, Inc. v. Costa, the Court for the first time interpreted section 703(m) which was added to Title VII in the Civil Rights Act of 1991 and which provides that plaintiff establishes defendants liability by proving that race or sex "was a motivating factor for any employment practice, even though other factors also motivated the practice." Applying a plain meaning approach, the unanimous Court decided that, "In order to obtain an instruction under [section 703(m)], a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice." Rejecting literally hundreds of lower court decisions, the Court concluded that "direct evidence of discrimination is not required in mixed-motive cases."

This article works out the implications for individual discrimination law of Desert Palace. The major conclusion is that section 703(m)'s "a motivating factor" applies in all contested individual discrimination cases. Price Waterhouse v. Hopkins has lost any significance beyond its validation of using evidence of stereotypical thinking to support a finding of discrimination. As a method of analysis separate from section 703(m), McDonnell Douglas' "determinative influence" standard applies as a matter of law only in those rare situations where plaintiff has a "barebones" prima facie case and nothing more and defendant decides not to assert a nondiscriminatory reason to rebut the prima facie case. While plaintiff and defendant may agree that McDonnell Douglas applies in any particular case, if they do not agree the "a motivating factor" test established in section 703(m) applies to all individual disparate treatment cases. But for that very small subset of cases where the McDonnell Douglas analysis applies, defendant will be liable if race, color, religion, sex, or national origin was "a motivating factor" for the action plaintiff attacks. If an impermissible factor was a motivating factor, the defendant has the opportunity provided by section 706(g)(2)(B) to prove as an affirmative defense to full remedies that it would have made the same decision even if it had not considered that impermissible factor.