Page 1
United States Supreme Court Amicus Brief.
DESERT PALACE, INC., dba CAESARS PALACE HOTEL & CASINO, Petitioner,
v.
Catharina F. COSTA, Respondent.
No. 02-679.
March 31, 2003.
On Writ of Certiorari to the United States Court of Appeals for the Ninth
Circuit
Brief of the National Employment Lawyers Association, as Amicus Curiae in
Support of the Respondent
Ronald B. Schwartz Counsel of Record HEDBERG, TOBIN, FLAHERTY & WHALEN, P.C. Three
First National Plaza Suite 2150 Chicago, IL 60602 (312) 726-0236
Jenifer Bosco Senior Staff Attorney NATIONAL EMPLOYMENT LAWYERS ASSOCIATION 44
Montgomery Street Suite 2080 San Francisco, CA 94104 (415) 296-7629 Counsel for Amicus
Curiae National Employment Lawyers Association
*i TABLE OF CONTENTS
TABLE OF AUTHORITIES ... iii
INTEREST OF AMICUS CURIAE ... 1
INTRODUCTION ... 2
SUMMARY OF ARGUMENT ... 2
ARGUMENT ... 3
I. THIS COURT'S ANALYSIS SHOULD BEGIN WITH THE CIVIL RIGHTS ACT OF 1991 ... 3
A. The Civil Rights Act of 1991 Was Enacted "to Strengthen and Improve Federal Civil
Rights Laws," Not Merely as a Response to Supreme Court Cases Favoring Employers ...
4
B. The Civil Rights Act of 1991 Does Not Contain a Direct Evidence Requirement for
Mixed Motive Cases ... 6
II. THE CIVIL RIGHTS ACT OF 1991 EVIDENCES A STRONG INTENT BY CONGRESS THAT WORKPLACES
SHOULD BE FREE OF UNLAWFUL DISCRIMINATION ... 7
A. There Exists a Strong Inference That Congress Intended to Create an Incentive for
Employers to Ensure That Their Workplaces Avoid Unlawful Discrimination ... 7
B. Faragher Type Guidance for Employers Is Needed ... 8
*ii III. ARGUMENTS MADE ON BEHALF OF PETITIONER ARE NOT CONSISTENT WITH THE CIVIL
RIGHTS ACT OF 1991 ... 9
A. Justice O'Connor's Concurrence in Price Waterhouse Does Not Control the Instant
Matter ... 9
Page 2
B. There Is No Basis to Construe The Civil Rights Act of 1991 Narrowly ... 9
C. Fears of a Greater Liability Rate Are No Basis to Require Direct Evidence in Mixed
Motive Cases ... 10
D. Jury Instructions Can Be Crafted as Needed to State Correctly Mixed Motive Law under
the Civil Rights Act of 1991 ... 12
CONCLUSION ... 15
*iii TABLE OF AUTHORITIES
Cases
American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) ... 6
Connecticut Nat'l. Bank v. Germain, 503 U.S. 249, 253-54 (1992) ... 6
Costa v. Desert Palace, Inc., 299 F.3d 838, 851 (9th Cir. 2002) (en banc opinion) ...
7, 12
Edelman v. Lynchburg College, 535 U.S. 106 (2002) ... 1
Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) ... 8
Kolstad v. American Dental Ass'n., 527 U.S. 526, 545 (1999) ... 8, 12
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... 3, 4, 5 7, 9, 10
Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979) ... 3
Romano v. U-Haul Intern., 233 F.3d 655, 669 (1st Cir. 2000) ... 12
Rubin v. United States, 449 U.S. 424, 430 (1981) ... 6
Shaw v. Merchants' Nat'l Bank, 101 U.S. 557, 565 (1879) ... 9
*iv U.S. v. Turkette, 452 U.S. 576, 588-89 (1981) ... 5
United States ex Rel. Marcus v. Hess, 317 U.S. 537, 542 (1943) ... 10
Wolff v. Brown, 128 F.3d 682 (8th Cir. 1997) ... 7, 13
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) ... 5
Page 3
West v. Gibson, 527 U.S. 212 (1999) ... 1
Statutes
42 U.S.C. § 1981a ... 12
42 U.S.C. § 2000e-5(g)(2)(B) ... 6, 8, 13, 14
42 U.S.C. § 2000e-2(m) ... 3, 4, 13
Section 107(a) of the Civil Rights Act of 1991 ... 3, 4, 6, 8, 10
Title VII of the Civil Rights Act of 1964 ... 3, 7
Legislative History
H.R. Rep. No. 102-40, pt. 1, at 157-58 (1991) (minority views) ... 10
H.R. Rep. No. 40 (II), 102nd Cong., 1st Sess. 1991, 1991 U.S.C.C.A.N. 549, 1991 WL
87020 (Leg. Hist.) *1. ... 4
*v Civil Rights Act of 1990--Hon. Augustus F. Hawkins (Extension of Remarks--February
7, 1990) ... 8
PL 102-166, November 21, 1991, 105 Stat 1071 ... 4, 5
PL 102-166, November 21, 1991, 105 Stat 1071, § 3 ... 5
PL 102-166, November 21, 1991, 105 Stat 1071, § 102, codified at 42 U.S.C. § 1981a ...
5
Other Authorities
Bureau of Justice Statistics Special Report: Civil Rights Complaints in U.S. District
Courts, 1990-1998, <http://www.ojp.usdoj.gov/bjs/pub/pdf/crcusdc.pdf> (3/26/2003) ...
11
Equal Advisory Council's amicus brief (2003 WL 834711 at *17) ... 9
Michael Selmi, EMPLOYMENT DISCRIMINATION AND THE PROBLEMS OF PROOF: A SYMPOSIUM, Why
are Employment Discrimination Cases So Hard to Win?, 61 La. L. Rev. 555 (2001) ... 11
*1 INTEREST OF AMICUS CURIAE [FN1]
FN1. Pursuant to Supreme Court Rule 37.6, amicus states that no person or entity
other than the amicus curiae, and their undersigned counsel made a monetary
contribution to the preparation or submission of this brief. No attorney for any
party authored this brief in whole or in part. Written consent to the filing of
this brief has been obtained from the parties in accordance with Supreme Court
Rule 37.3(a). Copies of the consent letters have been filed with the Clerk.
Page 4
The National Employment Lawyers Association (NELA) and its 67 state and local
affiliates have a membership of over 3,000 attorneys, and NELA is the country's
only professional membership organization of lawyers who regularly represent
employees in labor, employment and civil rights disputes. NELA regularly supports
precedent-setting litigation affecting the rights of individuals in the
workplace. NELA has filed amicus curiae briefs before this Court and numerous
courts of appeals regarding the proper interpretation and application of Title
VII to insure that the rights of workers are fully protected. For example, NELA
participated in filing amicus curiae briefs in this Court's decisions in Edelman
v. Lynchburg College, 535 U.S. 106 (2002); and West v. Gibson, 527 U.S. 212
(1999).
NELA members represent thousands of individuals in this country who have
suffered unlawful employment discrimination, including sex discrimination. The
interest of NELA in this case is to protect the rights of its members' clients,
by ensuring that the goals of Title VII and the Civil Rights Act of 1991 to
eradicate employment discrimination are fully realized. NELA submits this brief
because of the importance of the issues at bar to furthering its goals. For these
reasons, amicus respectfully request that the Court consider its views in support
of the Respondent.
*2 INTRODUCTION
The Civil Rights Act of 1991 embodies the intention of Congress to strengthen
and improve laws redressing unlawful discrimination. In particular, the Act
states that employers in mixed-motive cases will incur at least limited liability
if an employee can prove that unlawful discrimination was a motivating factor for
an employment practice. Petitioner urges reversal of the court below on the
ground that the employee must use direct evidence to prove that unlawful
discrimination was a motivating factor. However, nothing in the Act or the
section in question limits proof to direct evidence. Grafting such a requirement
onto this section would weaken rather than strengthen the civil rights laws.
SUMMARY OF ARGUMENT
This Court's analysis should begin with the Civil Rights Act of 1991. It was
enacted "to strengthen and improve federal civil rights laws," not merely as a
response to Supreme Court cases favoring the employer. This Act does not contain
a requirement that an employee establish through direct evidence that unlawful
discrimination was a motivating factor for an employment practice. Based on the
plain meaning of Section 107(a) of the Act there is no requirement that proof
must be limited to direct evidence.
The Civil Rights Act of 1991 evidences a strong intent by Congress that
workplaces should be free of unlawful discrimination. A strong inference exists
that Congress intended to create an incentive for employers to ensure that their
workplaces avoid unlawful discrimination. Consequently, it appropriate for this
Court to provide Faragher type guidance to employers.
The arguments made on behalf of Petitioner are not consistent with the Civil
Rights Act of 1991. First, Justice
*3 O'Connor's concurrence in Price Waterhouse
does not control the instant matter. Second, there is no basis to construe the
Civil Rights Act of 1991 narrowly. Third, fears of a greater liability rate are
no basis to require direct evidence in mixed-motive cases. Finally, jury
instructions can be crafted as needed to state correctly mixed motive law under
the Civil Rights Act of 1991.
ARGUMENT
I. THIS COURT'S ANALYSIS SHOULD BEGIN WITH CIVIL RIGHTS ACT OF 1991
The statutory provision at the heart of this case is 42 U.S.C. § 2000e-2(m). It
provides:
Except as otherwise provided in this title, an unlawful employment practice is
established when the complaining party demonstrates that race, color, religion,
sex, or national origin was a motivating factor for any employment practice, even
though other factors also motivated the practice.
Section 107(a) of the Civil Rights Act of 1991 added this provision. It was one
of many fundamental changes to Title VII of the Civil Rights Act of 1964,
resulting from the 1991 Act.
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Petitioner has framed the question presented in terms of the "analysis set out
in Price Waterhouse v. Hopkins." However, phrasing; the question in that manner
assumes that the Price Waterhouse statutory construction analysis was not
superseded by the language of the 1991 Act. "[I]n every case involving the
construction of a statute, [the Court's] starting point must be the language
employed by Congress." Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979).
Accordingly, a better way to phrase the question presented is: "Whether a
plaintiff in a Title VII case must adduce direct evidence of discriminatory
intent to
*4 establish an unlawful employment practice as provided by Section
107(a) of the Civil Rights Act of 1991, codified as 42 U.S.C. § 2000e-2(m)."
A. THE CIVIL RIGHTS ACT OF 1991 WAS ENACTED "TO STRENGTHEN AND IMPROVE FEDERAL
CIVIL RIGHTS LAWS," NOT MERELY AS A RESPONSE TO SUPREME COURT CASES FAVORING
EMPLOYERS.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), certainly prompted the
inclusion of section 107(a) in the 1991 Civil Rights Act. But the backdrop for
this section and for the Act itself is much broader. Two primary purposes were
stated for the Act:
The first is to respond to recent Supreme Court decisions by restoring the
civil rights protections that were dramatically limited by those decisions. The
second is to strengthen existing protections and remedies available under federal
civil rights laws to provide more effective deterrence and adequate compensation
for victims of discrimination.
H.R. Rep. No. 40 (II), 102nd Cong., 1st Sess. 1991, 1991 U.S.C.C.A.N. 549, 1991
WL 87020 (Leg. Hist.) *1.
The preamble reflects the fact that the Civil Rights Act of 1991 is not just a
reaction to Price Waterhouse and other Supreme Court employment decisions. The
Act was intended to "amend the Civil Rights Act of 1964 to strengthen and improve
Federal civil rights laws." PL 102-166, November 21, 1991, 105 Stat 1071. The
Congressional findings further demonstrate that the scope of the Act is broader
than the Supreme Court employment decisions which had recently preceded its
enactment:
*5 The Congress finds that--
(1) additional remedies under Federal law are needed to deter unlawful
harassment and intentional discrimination in the workplace;
(2) the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio, 490
U.S. 642 (1989) has weakened the scope and effectiveness of Federal civil rights
protections; and
(3) legislation is necessary to provide additional protections against unlawful
discrimination in employment.
Id. at § 2. See generally U.S. v. Turkette, 452 U.S. 576, 588-89 (1981)
(findings of RICO statute reflect the broad need for its enactment).
The first purpose listed for the Act is "to provide appropriate remedies for
intentional discrimination and unlawful harassment in the workplace." The fourth
listed purpose is "to respond to recent decisions of the Supreme Court by
expanding the scope of relevant civil rights statutes in order to provide
adequate protection to victims of discrimination." PL 102-166, November 21, 1991,
105 Stat 1071, § 3. Consequently, section 107(a) should not be read merely as a
reaction to the Price Waterhouse decision.
Compensatory and punitive damages are now part of the fabric of Title VII cases.
This is because of the sweeping changes brought by the Civil Rights Act of 1991.
PL 102-166, November 21, 1991, 105 Stat 1071, § 102, codified at 42 U.S.C. §
1981a. In 1989, when this Court's Price Waterhouse decision was issued, these
remedies were not available. Another important development resulting from the
Civil Rights Act of 1991 is the right to a jury trial in Title VII cases. Id.
Previously, trials of all Title VII cases were decided by district court judges
without a jury. In sum, the Civil Rights Act of 1991 effected changes
*6 in
federal civil rights law which are much broader than the Supreme Court cases
which were addressed in the Act.
B. THE CIVIL RIGHTS ACT OF 1991 DOES NOT CONTAIN A DIRECT EVIDENCE REQUIREMENT
FOR MIXED MOTIVE CASES.
The Civil Rights Act of 1991 provides employers an affirmative defense which
limits the employee's remedies if the employer shows that it "would have taken
the same action in the absence of the impermissible motivating factor." 42 U.S.C.
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§ 2000e-5(g)(2)(B). Nothing in the 1991 Act generally, or in section 107(a)
particularly, requires that an employee establish through direct evidence that
unlawful discrimination was a motivating factor. There is nothing in the Act or
section 107(a) which even hints that Congress intended to limit proof of mixed-
motive discrimination to direct evidence. Rather, the Act evidences an intent on
the part of Congress to eradicate unlawful discrimination regardless of whether
the evidence is circumstantial or direct.
It is well-settled that, when construing statutory provisions, courts must look
first to the plain meaning of the statutory language. E.g.,American Tobacco Co.
v. Patterson, 456 U.S. 63, 68 (1982). This Court has "stated time and again that
courts must presume that a legislature says in a statute what it means and means
in a statute what it says there." Connecticut Nat'l. Bank v. Germain, 503 U.S.
249, 253-54 (1992). "When the words of a statute are unambiguous, then, this
first canon is also the last: 'judicial inquiry is complete.' " Id. (quoting
Rubin v. United States, 449 U.S. 424, 430 (1981)).
The meaning of section 107(a) is plain. Nothing in this section or the Act as
a whole requires that a "mixed motive" be established by direct evidence. The
Preamble, the Congressional Findings and Purposes of the Civil Rights
*7 Act of
1991 Act are unambiguous; a primary purpose of the Act is to strengthen and
improve civil rights laws. Therefore, there is no basis or reason to analyze or
apply Justice O'Connor's concurring opinion in Price Waterhouse. That opinion
pertains to a judicial interpretation of Title VII which was superseded by the
1991 Amendments. Costa v. Desert Palace, Inc., 299 F.3d 838, 851 (9th Cir. 2002)
(en banc opinion). See also Wolff v. Brown, 128 F.3d 682 (8th Cir. 1997) (direct
evidence not stated as requirement in mixed motive case).
Given the "sea-level" changes to Title VII of the Civil Rights Act of 1964,
there is no basis to conclude that Congress intended to limit changes in the law
pertaining to mixed motive cases only to cases where direct evidence is
available. Congress did not write this requirement into the statute. Requiring
the presentation of direct evidence in mixed-motive cases to establish that
unlawful discrimination is a motivating factor for an employment practice is
contrary to the Title VII of the Civil Rights Act of 1964, as amended and
established Supreme Court precedent pertaining to the construction of statutes.
II. THE CIVIL RIGHTS ACT OF 1991 EVIDENCES A STRONG INTENT BY CONGRESS THAT
WORKPLACES SHOULD BE FREE OF UNLAWFUL DISCRIMINATION.
A. THERE EXISTS A STRONG INFERENCE THAT CONGRESS INTENDED TO CREATE AN INCENTIVE
FOR EMPLOYERS TO ENSURE THAT THEIR WORKPLACES AVOID UNLAWFUL DISCRIMINATION.
When a jury finds that employer's treatment of an employee is based on an
unlawful motive, the employer has crossed a "threshold" and engaged in conduct
explicitly prohibited by Congress. The 1991 Amendment provides
*8 limited
liability in such circumstances even if the employer shows that it "would have
taken the same action in the absenceof the impermissible motivating factor." 42
U.S.C. § 2000e-5(g)(2)(B). Regardless of whether proof of unlawful discrimination
is direct or circumstantial, the employer should take all necessary measures to
keep its workplace free of unlawful discrimination. See Civil Rights Act of 1990-
-Hon. Augustus F. Hawkins (Extension of Remarks-- February 7, 1990) ("any
reliance on prejudice in making employment decisions is illegal"). Affirming the
court below will send a message to employers that proactive measures are needed
to comply with all types of discrimination prohibited by Title VII, not just
sexual harassment situations.
B. FARAGHER TYPE GUIDANCE FOR EMPLOYERS IS NEEDED.
The primary purpose of Title VII "is not to provide redress but to avoid harm."
Kolstad v. American Dental Ass'n, 527 U.S. 526, 545 (1999), quoting Faragher v.
City of Boca Raton, 524 U.S. 775, 806 (1998). Faragher involved a sexual
harassment situation which violated the sex discrimination provision of Title
VII. The Civil Rights Act of 1991 does provide additional means of redress but
the ultimate goal is to avoid and discourage unlawful discrimination.
Enforcing the plain language of section 107(a) of the Civil Rights Act of 1991
will encourage employers to take steps to ensure that employment practices are
not infected with unlawful motives. Early warning programs should be in place
regardless of whether proof an unlawful motive is by direct or circumstantial
evidence. See Faragher, 524 U.S. at 806-07. Responsible employers will take
Page 7
advantage of preventive legal counseling offered by the management bar. As was
the situation in response to Faragher, the management bar is likely to market
these pro-active legal services to clients and potential clients.
*9 III. ARGUMENTS MADE ON BEHALF OF PETITIONER ARE NOT CONSISTENT WITH THE CIVIL
RIGHTS ACT OF 1991.
A. JUSTICE O'CONNOR'S CONCURRENCE IN PRICE WATERHOUSE DOES NOT CONTROL THE
INSTANT MATTER.
Petitioner's reliance on Justice O'Connor's concurrence in Price Waterhouse is
misplaced because that opinion addresses what is now a superseded statutory
interpretation of Title VII. When Price Waterhouse was decided, Congress had not
yet spoken to the "mixed motives" issue. Instead, this Court had the difficult
task in Price Waterhouse of sorting out causation issues and assigning burdens
of proof without much statutory guidance. The 1991 Amendment, in addition to
establishing limited liability when unlawful discrimination is a motivating
factor, changed the landscape of Title VII litigation. Title VII claimants now
have the opportunity to seek compensatory and punitive damages from juries. Prior
to the enactment of the Civil Rights Act of 1991, seeking such damages was not
an option. Nor was a jury trial an option. In sum, because Title VII has changed
significantly since Price Waterhouse was decided, Justice O'Counor's concurrence
does not control the outcome of this matter.
B. THERE IS NO BASIS TO CONSTRUE THE CIVIL RIGHTS ACT OF 1991 NARROWLY.
The Equal Advisory Council's amicus brief (2003 WL 834711 at *17) argues that
a "narrow interpretation" of the scope of the 1991 Amendment's changes is
warranted, because "[n]o statute is to be construed as altering the common law,
further than its words import. It is not to be construed as making any innovation
upon the common law which it does not fairly express." Shaw v. Merchants' Nat'l
Bank, 101 U.S. 557, 565 (1879). This argument is faulty
*10 because Shaw involved
the common law of bills of lading. Congress attempted to alter a long-standing
common law doctrine by modifying the law with respect to bills of lading.
In contrast, Price Waterhouse is a judicial interpretationof what is now an
outdated version of Title VII, which was first enacted in 1964. It is a statute
with no common law antecedent. This Court has stated that "[s]ound rules of
statutory interpretation exist to discover and not to direct the Congressional
will." United States ex Rel. Marcus v. Hess, 317 U.S. 537, 542 (1943). The
Preamble, Congressional Findings, Purpose, and the specific changes provided by
the 1991 Amendment make it elementary to discover the Congressional will:
Congress wanted to strengthen and improve federal discrimination laws. Moreover,
because the 1991 statutory language of section 107(a) of the Act is clear it is
not even necessary to explore Congressional intent.
C. FEARS OF A GREATER LIABILITY RATE ARE NO BASIS TO REQUIRE DIRECT EVIDENCE IN
MIXED MOTIVE CASES.
Petitioner argues that absent a direct evidence requirement to trigger the
mixed-motive analysis, the burden of proof will be shifted to the employer in
almost all cases. This argument is faulty because the employee must first prove
that unlawful discrimination was a motivating factor for the employment action.
Only then does the burden shift to the employer to show that the employment
action would have occurred regardless of the unlawful discrimination.
The legislative history of the 1991 Amendment includes a statement that a
Justice Department report indicated that plaintiffs had won almost 80 percent of
the mixed-motives cases after the Price Waterhouse decision. H.R. Rep. No. 102-
40, pt. 1, at 157-58 (1991) (minority views). However, very little information
about these cases is provided in the legislative record. Because Price Waterhouse
was
*11 decided in 1989, only a relatively small sample of cases could have been
gathered in the two years before the passage of the 1991 Act.
This Court should view the 1990 era Justice Department report with skepticism
because more comprehensive recent studies have shown that employees seldom are
victorious in court. One study found that between 1992 and 1998 employers
prevailed in 93% of employment discrimination cases decided on the merits at the
trial level and that employers prevailed in 84% of cases which were subsequently
appealed. There was also some evidence in the study that employee victories were
reversed at a greater rate on appeal. Michael Selmi, EMPLOYMENT DISCRIMINATION
Page 8
AND THE PROBLEMS OF PROOF: A SYMPOSIUM, Why are Employment Discrimination Cases
So Hard to Win?, 61 La. L. Rev. 555 (2001). A report by the Bureau of Justice
Statistics Special Report: Civil Rights Complaints in U.S. District Courts, 1990-
1998, available at http:// www.ojp.usdoj.gov/bjs/pub/pdf/crcusdc.pdf(3/26/2003),
states that for civil rights cases, dismissals increased from 66% in 1990 to 71%
in 1998.
Consequently, it appears that employers effectively use summary judgment
procedures for cases arising under the Civil Rights Act of 1991. Regardless of
whether there is a direct evidence requirement in mixed-motive cases, the
employee still has the burden of proof to establish that unlawful discrimination
is a motivating factor. The overall experience of the courts subsequent to the
1991 Amendment strongly suggests that summary judgment proceedings will continue
to result in a large majority of dismissals of civil rights cases.
*12 D. JURY INSTRUCTIONS CAN BE CRAFTED AS NEEDED TO STATE CORRECTLY MIXED
MOTIVE LAW UNDER THE CIVIL RIGHTS ACT OF 1991.
The Civil Rights Act of 1991 creates challenges for Courts to fashion proper
jury instructions correctly reflecting the law. This problem was inevitable once
Congress authorized jury trials in Title VII cases. Courts, in putting together
jury instructions, are dealing with statutory constructs with no common law
antecedent. In Kolstad v. American Dental Association, 527 U.S. 526 (1999), a
case arising after the 1991 Amendment, this Court determined that the employee
was entitled to a jury instruction on punitive damages. Justice O'Connor came to
this conclusion after carefully construing 42 U.S.C. § 1981a. Id. at 534-36. The
Court's ruling in Kolstad provides guidance to lower courts in crafting Title VII
punitive damages instructions and the review of those instructions by the courts
of appeals. See, e.g., Romano v. U-Haul Intern., 233 F.3d 655, 669 (1st Cir.
2000).
This Court has a similar opportunity to provide direction in the construction
of jury instructions in mixed motive cases. The approach of the en banc majority
below should be adopted. First, the trial court should analyze the evidence. If
the court "determines that the only reasonable conclusion a jury could reach is
that discriminatory animus is the sole cause for the challenged employment action
or that discrimination play no role at all in the employer's decisionmaking,"
then a mixed motive instruction should not be used. Costa v. Desert Palace, 299
F.3d 838, 856 (9th Cir. 2002) (emphasis added).
The mixed motive instruction provided by the Costa trial court is adequate. The
essence of the instruction to the jury was that:
*13 If you find that the plaintiff's sex was a motivating factor in the
defendant's treatment of the plaintiff, the plaintiff is entitled to your
verdict, even if you find that the defendant's conduct was also motivated by a
lawful reason.
However, if you find that the defendant's treatment of the plaintiff was
motivated by both gender and lawful reasons, you must decide whether the
plaintiff is entitled to damages unless the defendant proves by a preponderance
of the evidence that the defendant would have treated similarly even if the
plaintiff's gender had played no role in the employment decision.
The instruction is proper because the first paragraph accurately summarizes the
law as stated in 42 U.S.C. § 2000e-2(m). Likewise, the second paragraph correctly
summarizes the law as stated in 42 U.S.C. § 2000e-5(g)(2)(B).
Wolff v. Brown, 128 F.3d 682 (8th Cir. 1997), also considered jury instructions
in mixed motive cases. The Eighth Circuit stated that it was not plain error to
give the following instructions:
Your verdict must be for the Plaintiff ... on Plaintiff's sex discrimination
claim if all the following elements have been proved by a preponderance of the
evidence: first, Defendant discharged Plaintiff; and second, Plaintiff's sex was
a motivating factor in Defendant's decision. If either of the above elements has
not been proved by a preponderance of the evidence, your verdict must be for the
Defendant and you need not proceed further in considering this claim.
If you find in favor of Plaintiff on his sex discrimination claim, then you must
answer the following question in the Verdict Form: "Has it been proved
*14 by the
preponderance of the evidence that Defendant would have discharged Plaintiff
regardless of his sex?"
Id. at 684. The only problem with this instruction is that Mr. Wolff failed to
Page 9
object at trial that the instruction did not place the burden of proof on the
employer to show that he would have been discharged regardless of his sex, as
required by 42 U.S.C. § 2000e-5(g)(2)(B). Consequently, the last sentence of the
instruction should read:
"Has Defendant proved by the preponderance of the evidence that it would have
discharged Plaintiff regardless of his sex."
Finally, it has been suggested by amici who support Petitioner that jury
instructions in mixed motive cases will be unwieldy in certain situations where
age discrimination or section 1981 claims are brought with Title VII claims.
While these combinations are certainly possible, the instant case is not one of
them. The Court should wait to tackle these thorny issues when an appropriate
case is presented for review.
*15 CONCLUSION
In light of the clear purpose of the Civil Rights Act of 1991, amicus
respectfully requests that this Court uphold the decision of the Ninth Circuit
in favor of the Respondent.
U.S.Amicus.Brief,2003.
Desert Palace, Inc. v. Costa
END OF DOCUMENT