Mixed motive discrimination


"Mixed motive" discrimination is a category of discrimination under Title VII of the Civil Rights Act of 1964.
Where the plaintiff has shown intentional discrimination in a mixed motive case, the defendant can still avoid liability for money damages by demonstrating by a preponderance of the evidence that the same decision would have been made even in the absence of the impermissible motivating factor. If the defendant establishes this defense, the plaintiff is then entitled only to declaratory and injunctive relief, attorney’s fees, and costs. Orders of reinstatement, as well as the substitutes of back and front pay, are prohibited if a same decision defense is proven. 42 U.S.C. §2000e-5.
In the landmark case, Price Waterhouse v. Hopkins, the Supreme Court has ruled that direct evidence is not required for a plaintiff to prove that discrimination was a motivating factor in a "mixed-motive" case, i.e., a case in which an employer had both legitimate and illegitimate reasons for making an employment decision. The distinction between "mixed-motive" cases and "pretext" cases is generally determined by whether the plaintiff produces direct rather than circumstantial evidence of discrimination. If the plaintiff produces direct evidence of discrimination, this is sufficient to show that the defendant’s activity was motivated at least in part by animus toward a protected class, and therefore a "mixed-motive" instruction is given. If the evidence of discrimination is only circumstantial, the appropriate framework is the McDonnell Douglas burden-shifting framework. See generally Fakete v. Aetna, Inc..
On the proper use of mixed-motive instructions, see Matthew Scott and Russell Chapman, Much Ado About Nothing — Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive, 36 St. Mary’s L.J. 395 :