In a unanimous decision, the U.S. Supreme Court in Desert Palace, Inc. DBA Caesars Place Hotel & Casino v. Costa, No. 02-679, ruled that an employee does not have to introduce direct evidence of discrimination to prove a “mixed-motive” discrimination case under Title VII of the Civil Rights Act, but can rely on circumstantial evidence. While issued in the context of the instruction that should be given to the jury, the standard would also be used by administrative judges at the Equal Employment Opportunity Commission, often used by federal employees instead of court.

In a mixed-motive case, an employer has both legitimate and illegitimate reasons for its actions. Here, for example, the evidence showed that Ms. Costa was subjected to a discriminatory work environment, but also showed that she was terminated for a physical altercation with another worker. The employer argued that it would have fired her even without the discriminatory motive. In mixed-motive cases, the employee must first prove that the discrimination was a motivating factor in the employer’s action, and then the employer must prove that it would have taken the same action even without the discrimination. If an employer shows that it would have made the same decision, most liability is cut off.

Prior to this decision, many courts required plaintiffs to present direct, not circumstantial, evidence. These courts relied on a 1989 Supreme Court case, Price Waterhouse v. Hopkins, where Justice O’Connor wrote that the plaintiff had to demonstrate by “direct evidence” that an illegitimate factor played a role in a particular employment decision. Direct evidence is the “smoking gun,” like an employer telling you that you don’t fit in because you are a woman, or you are too old to work. This type of evidence is rare, as people usually hide discriminatory motives. Circumstantial evidence is indirect evidence that could lead someone to conclude you were discriminated against, like if younger employees, or male employees, are getting all the “plum” assignments, and then promotions are justified by who received these assignments.

After the Price Waterhouse decision, Congress amended the Civil Rights Act to lay out the burdens of proof in a mixed-case. The high court ruled that the language used by Congress did not mention that a plaintiff must make a heightened showing through direct evidence. The court opined that if Congress had intended to impose heightened proof requirements, it could have done so. In addition, the court noted that the same language was used in a similar provision that applied to the employer’s burden. However, when questioned if the employer’s burden would also be heightened under that provision, attorneys for Caesar’s Place refused to agree that it would. The court declined to give the “same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue.”

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **