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The United States Supreme Court recently held that plaintiffs pursuing a “mixed motive” theory of discrimination need not present direct evidence of discrimination, but may prevail even if their claims are proven exclusively with circumstantial evidence. In Desert Palace, Inc. v. Costa, No. 02-679, the plaintiff, Catherina Costa, was employed by a casino as a warehouse worker and heavy equipment operator. She was the only woman in that job and the only woman in her bargaining unit. When Costa’s employment was terminated after she was involved in a physical altercation with a co-worker, she sued Desert Palace for sex discrimination under Title VII and the statute that amended it, the 1991 Civil Rights Act.

The Jury Instruction
At trial, at Costa’s request, the jury was instructed that the case before it was a “mixed motive” sex discrimination claim. In other words, Costa had demonstrated that both permissible (e.g., fighting on the job) and impermissible (e.g., discriminatory) reasons motivated the decision to terminate her employment. Desert Palace objected to the jury instruction. According to Desert Palace, under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, a plaintiff was only entitled to a “mixed motive” instruction if she had adduced “direct” or “smoking gun” evidence of discrimination, and Costa had relied exclusively on circumstantial evidence. Desert Palace’s objection to the instruction was overruled and it appealed the jury verdict in Costa’s favor all the way up to the Supreme Court.

The Court’s Ruling
In a unanimous ruling, the Supreme Court agreed with Costa and held that direct evidence was not necessary in order for a discrimination plaintiff to avail herself of the “mixed motive” instruction. In an exercise in statutory interpretation, the Supreme Court reasoned that the unambiguous language of the 1991 Civil Rights Act, which amended Title VII, was written in direct response to Price Waterhouse and any requirement of “direct evidence” was conspicuously absent from the statute. Rather, the statute requires a plaintiff to “demonstrate” that both permissible and impermissible reasons motivated the adverse employment action, and the statute defines “demonstrate” as to “meet the burdens of production and persuasion.” Had Congress intended plaintiffs to be faced with the more difficult task of producing often non-existent “direct” evidence, it would have incorporated that requirement into the statute. Moreover, criminal cases, which require the government to prove its case “beyond a reasonable doubt,” often are based solely on circumstantial evidence. Accordingly, the Court found no statutory basis for requiring plaintiffs relying on the “mixed motive” theory to produce direct evidence of discrimination.

Practical Implications
Employees are likely to find it easier to prove and win discrimination claims after this case. It is all the more important, therefore, that employers have appropriate measures in place to ensure that all adverse employment decisions can be shown to be based purely on legitimate, nondiscriminatory reasons.