Monday, June 09, 2003

Supreme Court shoots down rule of the Fourth Circuit (and others) on when plaintiff gets a "mixed motive" instruction in Title VII cases

Today in Desert Palace, Inc. v. Costa, the unanimous Supreme Court rejected the holding of Fuller v. Phipps, 67 F.3d 1137 (4th Cir. 1995), concluding that the statutory response to Price Waterhouse v. Hopkins, 490 U.S.228 (1989), allowing employers to assert a mixed motive defense only as to plaintiff's remedy, does not require "direct evidence" of discrimination but may also apply in cases where plaintiff demonstrates discrimination was a motive for the adverse employment action.

The Fuller opinion makes sense, in that most of the time, the case is not about whether there were mixed motives, but the jury must decide whether the employer's motive was the illegal one claimed by the plaintiff or the legal ones claimed by the defendant. Giving a mixed motive instruction where neither side is claiming there were mixed motives seems somehow unjust in possibly both directions - but it happens all the time in cases under Mt. Healthy, so what else is new.

I recently had occasion in this case to try to explain the difference between the Title VII standard and the Mt. Healthy test, in a case where the plaintiff claimed she was transferred because of race, age, and politics. The magistrate judge said, aren't they really the same? My answer was and is no, but today's ruling will make the difference even more difficult to explain - the Mt. Healthy defense applies in Title VII cases, except the plaintiff's initial burden is lower in Title VII cases, and the defense in Title VII cases goes only to remedy (or something like that). (The magistrate judge did not buy my arguments in their entirety, but the district court judge did.)

UPDATE - The AP has this report and Reuters has this report and the UPI has this report and SCOTUSblog has this post on the Desert Palace case.

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