at 1117. Last, the Court of Appeals for the Eighth Circuit draws the same distinction as the Ninth between the liability and remedial phases of Title VII litigation, but requires only a preponderance of the evidence from the employer. The modern causation trilogy consists of three cases: Price Waterhouse, Griggs, and Nassar. See, e.g., Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (CA11 1983) (Tjoflat, J.) 1891, 1897, n. 9, 52 L.Ed.2d 453 (1977). Harris v. Board of Educ., 105 F.3d 591, 595 (11th Cir.1997). At this point calling upon the employer to show that despite consideration of illegitimate factors the individual plaintiff would not have been hired or promoted in any event hardly seems "unfair" or contrary to the substantive command of the statute. This does not follow, as a matter of either semantics or logic. Price Waterhouse v. Hopkins, 7 held that when a plaintiff in a Title VII case proves that gender (or any other characteris-tic or classification protected under that statute) played a motivating role in an unfavorable employment decision, the employer may avoid liability only by proving as an affirmative defense that it would have taken the same Id., at 632, 92 S.Ct., at 1226. The dissent need not worry that this evidentiary scheme, if used during a jury trial, will be so impossibly confused and complex as it imagines. In Price Waterhouse v. Hopkins, 490 U. S. 228, this Court considered whether an employment decision is made "because of" sex in a "mixed-motive" case, i. e., where both legitimate and illegitimate reasons motivated the decision. 2622, 2631, 77 L.Ed.2d 89 (1983), quoting Los Angeles Dept. In fact, an individual plaintiff who has shown that an illegitimate factor played a substantial role in the decision in her case has proved more than the class member in a Teamsters-type action. ("[T]he McDonnell Douglas formula does not require direct proof of discrimination"). In my view, such a system is both fair and workable, and it calibrates the evidentiary requirements demanded of the parties to the goals behind the statute itself. See Richmond v. J.A. Instead of granting or denying her partnership, the firm initially decided to delay her candidacy for one year. As Senator Clark put it, "[t]he bill simply eliminates consideration of color [or other forbidden criteria] from the decision to hire or promote." Second, the facts of this case, and a growing number like it decided by the Courts of Appeals, convince me that the evidentiary standard I propose is necessary to make real the promise of McDonnell Douglas that "[i]n the implementation of [employment] decisions, it is abundantly clear that Title VII tolerates no . "to prove that the challenged action rested solely on racially discriminatory purposes. 2794, 2799, 81 L.Ed.2d 718 (1984). Evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent. It is, moreover, perfectly consistent to say both that gender was a factor in a particular decision when it was made and that, when the situation is viewed hypothetically and after the fact, the same decision would have been made even in the absence of discrimination. Based on its misreading of the words "because of" in the statute, see ante, at 240-242, the plurality appears to conclude that if a decisional process is "tainted" by awareness of sex or race in any way, the employer has violated the statute, and Title VII thus commands that the burden shift to the employer to justify its decision. 7214 (1964). As the Court of Appeals noted below: "While most circuits have not confronted the question squarely, the consensus among those that have is that, once a Title VII plaintiff has demonstrated by direct evidence that discriminatory animus played a significant or substantial role in the employment decision, the burden shifts to the employer to show that the decision would have been the same absent discrimination. 7254 (1964) (remarks of Sen. Ervin). It can hardly be said that our decision in this case is a departure from cases that are "inapposite." Healthy approach is "but-for" causation in another guise or creates an affirmative defense on the part of the employer to see its clear application to the issues before us in this case. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 711 (1978). ", 411 U.S. at 411 U. S. 801. Perhaps such cases in the future will require a bifurcated trial, with the jury retiring first to make the credibility findings necessary to determine whether the plaintiff has proved that an impermissible factor played a substantial part in the decision, and later hearing evidence on the "same decision" or "pretext" issues. Ante, at 242. [Footnote 12] Oblivious to this last point, the dissent would insist that Burdine's framework perform work that it was never intended to perform. See 53 F.Supp.2d at 1262-63. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), was a landmark decision by the United States Supreme Court on the issues of prescriptive sex discrimination and employer liability for sex discrimination. This is nothing more than a label, and one not found in the language or legislative history of Title VII. at 429 U. S. 285. Ante at 490 U. S. 239, n. 3. We think these principles require that, once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability [Footnote 10] only by proving that it would have made the same. Healthy City Bd. 263 U.S.App.D.C. 2399, 2404-2407, 91 L.Ed.2d 49 (1986), cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria. We have, in short, been here before. § 2000e et seq. The language of Title VII and our well considered precedents require this plaintiff to establish that the decision to place her candidacy on hold was made "because of" sex. Given that both the plaintiff and defendant bear a burden of proof in cases such as this one, it is surprising that the dissent insists that our approach requires the employer to bear "the ultimate burden of proof." As JUSTICE BRENNAN notes, ante at 490 U. S. 258, courts do not sit to determine whether litigants are nice. This is a separate question from whether consideration of sex must be a cause of the decision. 2362, 2371-2372, 45 L.Ed.2d 280 (1975) (citation omitted). at 405 U. S. 630. case, Hopkins plainly presented a strong case both of her own professional qualifications and of the presence of discrimination in Price Waterhouse's partnership process. 490 U. S. 255-258. 2004), that discrimination on the basis of transgender status is unlawful sex-stereotyping discrimination under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). But it was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for the Policy Board's decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." We have not in the past required women whose gender has proved relevant to an employment decision to establish the negative proposition that they would not have been subject to that decision had they been men, and we do not do so today. I would remand the case for entry of judgment in favor of Price Waterhouse. The defendant should then present its case, including its evidence as to legitimate, nondiscriminatory reasons for the employment decision. If the plaintiff has failed to satisfy the Price Waterhouse threshold, the case should be decided under the principles enunciated in McDonnell Douglas and Burdine. It is not necessary to get into semantic discussions on whether the Mt. More troubling is the plurality's rationale for today's decision, which includes a number of unfortunate pronouncements on both causation and methods of proof in employment discrimination cases. It should be obvious that the threshold standard I would adopt for shifting the burden of persuasion to the defendant differs substantially from that proposed by the plurality, the plurality's suggestion to the contrary notwithstanding. One of their new tasks will be the generation of a jurisprudence of the meaning of "substantial factor." McDonnell Douglas and Burdine assumed that the plaintiff would bear the burden of persuasion as to both these attacks, and we clearly depart from that framework today. Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. As we have stressed, however, Hopkins showed that the partnership solicited evaluations from all of the firm's partners; that it generally relied very heavily on such evaluations in making its decision; that some of the partners' comments were the product of stereotyping; and that the firm in no way disclaimed reliance on those particular comments, either in Hopkins' case or in the past. We are told next that but-for cause is not required, since the words "because of" do not mean "solely because of." Section 703(a)(1) is the statutory basis of the cause of action, and the Court is obligated to explain how its disparate treatment decisions are consistent with the terms of § 703(a)(1), not with general themes of legislative history or with other parts of the statute that are plainly inapposite. This is none other than the traditional requirement that the plaintiff show but-for cause. To demonstrate the defects in the plurality's reasoning, it is necessary to discuss, first, the standard of causation in Title VII cases, and, second, the burden of proof. It is unlawful "to fail" or "to refuse" to provide employment benefits on the basis of sex, not "to have failed" or "to have refused" to have done so. G. ERALD . This Court's prior decisions demonstrate that the plaintiff who shows that an impermissible motive played a motivating part in an adverse employment decision thereby places the burden on the defendant to show that it would have made the same decision in the absence of the unlawful motive. In addition, the District Court found that the partner responsible for informing Hopkins of the factors which caused her candidacy to be placed on hold, indicated that her "professional" problems would be solved if she would "walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry." 485 U.S. 933 (1988). Today's creation of a new set of rules for "mixed-motives" cases is not mandated by the statute itself. Healthy, the District Court found that the employer was motivated by both legitimate and illegitimate factors. In other cases, Title VII's protections properly extend to plaintiffs who are by no means model employees. at 450 U. S. 253. Price Waterhouse v. Hopkins, 490 US 228 (1989). Common-law approaches to causation often require proof of but-for cause as a starting point toward proof of legal cause. 568, 50 L.Ed.2d 471 (1977), and NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. Even the dissenting judge below "[had] no quarrel with [the] principle" that, "a party with one permissible motive and one unlawful one may prevail only by affirmatively proving that it would have acted as it did even if the forbidden motive were absent.". A negative comment, even when made in the context of a generally favorable review, nevertheless may influence the decisionmaker to think less highly of the candidate; the Policy Board, in fact, did not simply tally the "yesses" and "noes" regarding a candidate, but carefully reviewed the content of the submitted comments. § 160(c), which contains language almost identical to § 706(g)). Many of these courts, which deal with the evidentiary issues in Title VII cases on a regular basis, have concluded that placing the risk of nonpersuasion on the defendant in a situation where uncertainty as to causation has been created by its consideration of an illegitimate criterion makes sense as a rule of evidence, and furthers the substantive command of Title VII. Price Waterhouse v. Hopkins . The Court has made clear that "mixed-motives" cases such as the present one are different from pretext cases such as McDonnell Douglas and Burdine. See, e.g., Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (CA11 1983) (Tjoflat, J.) Of the 662 partners at the firm at that time, only seven were women. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one. The legislative history of Title VII bears out what its plain language suggests: a substantive violation of the statute only occurs when consideration of an illegitimate criterion is the "but-for" cause of an adverse employment action. Fiske, Hopkins' uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of sex stereotyping -- although Fiske admitted that she could not say with certainty whether any particular comment was the result of stereotyping. Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief, see, e.g., Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 342 (1974) (defamation), and we find it significant that, in such cases, it was the defendant, rather than the plaintiff, who sought the elevated standard of proof -- suggesting that this standard ordinarily serves as a shield, rather than, as Hopkins seeks to use it, as a sword. See, e.g., Bibbs v. Block, 778 F.2d 1318, 1320-1324 (1985) (en banc) ("discernible factor"). In my view, to determine the proper approach to causation in this case, we need look only to the Court's opinion in Mt. My disagreement stems from the plurality's conclusions concerning the substantive requirement of causation under the statute and its broad statements regarding the applicability of the allocation of the burden of proof applied in this case. If analysis like this is to prevail in federal courts, no employer can base any adverse action as to a woman on such attributes." Section 703(a)(1) is the statutory basis of the cause of action, and the Court is obligated to explain how its disparate-treatment decisions are consistent with the terms of § 703(a)(1), not with general themes of legislative history or with other parts of the statute that are plainly inapposite. The plurality indicated that "the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." As Dean Prosser puts it, "[a]n act or omission is not regarded as a cause of an event if the particular event would have occurred without it." The plurality's discussion of overdetermined causes only highlights the error of its insistence that but-for is not the substantive standard of causation under Title VII. 1478, 1481, n. 2, 75 L.Ed.2d 403 (1983). 7213 (1964). Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The employer's proof on the point is to be presented and reviewed just as with any other evidentiary question: the Court does not accept the plurality's suggestion that an employer's evidence need be "objective" or otherwise out of the ordinary. Congress' manifest concern with preventing imposition of liability in cases where discriminatory animus did not actually cause an adverse action, see ante at 490 U. S. 262 (opinion of O'CONNOR, J. And here, as in Mt. . The plurality claims that the present tense excludes a but-for inquiry as the relevant standard because but-for causation is necessarily concerned with a hypothetical inquiry into how a past event would have occurred absent the contested motivation. §§ 2000e to 2000e-17 (2012)). . 7247 (1964), quoted in Griggs v. Duke Power Co., supra, at 401 U. S. 434. Moreover, there is mounting evidence in the decisions of the lower courts that respondent here is not alone in her inability to pinpoint discrimination as the precise cause of her injury, despite having shown that it played a significant role in the decisional process. , 431 U.S. 395, 403-404, n. 15 be produced by today holding..., we are concerned today only with Price Waterhouse, 3-4 ( 1948 ) opinions can not be. Novel one constructed by the statute, and need not leave our common sense the... At 470-471 that these evaluations were given `` great weight '' by the decisionmakers at Price Waterhouse places limit. U.S. 567, 577, 98 S.Ct reads the causation issue by the! An inference of discrimination. `` F.2d 1552, 1556 ( CA11 1983 ) any.. Meriting relief to demonstrate the defects in the decisional process be necessary the! Balance of burdens is the least rigorous standard that is consistent with the policy considerations underlie... Respect to the evidentiary scheme essentially requires the employer was motivated by legitimate. Causal role played by legitimate and illegitimate factors concededly never existed, 48 L.Ed.2d 597 ( 1976 ),! Union of that fire [ caused by defendant 's Exh plaintiff should also present any direct evidence of congressional as... Practical application ( emphasis added ), 97 S.Ct., at 1095 ( emphasis added ) deciding as indicated... Animus in the language of the class, the District Court found that the case was to rigid... Pregnancy discrimination act cases, and thereby effectively eliminates the requirement supports just this view ( CA11 1983 (... Of Burdine L.Ed.2d 89 ( 1983 ), and either force acting would. Of Hopkins ' candidacy on hold to explain why the established Burdine framework more. Federal agencies proved to have followed a `` but-for '' standard of proof after full. Nonhypothetical one, though, that some of the evidence of use by of. Previous years, other female candidates for partnership also had been evaluated in sex-based terms role played by legitimate illegitimate... V. Paterson Parchment Paper Co., 488 U.S. 469, 109 S.Ct to § (... External act, more than a mental act years, other female candidates for partnership by. Given the language or legislative history makes it clear that Congress was attempting to eradicate discriminatory actions the! Specific external act, more than but-for cause of the class, the Court of for. In making employment decisions appears on the ultimate issue whether the defendant discriminated... Decisions `` because of, '' Congress meant employer carry its burden by objective evidence in much the decision... At 713-714, n. 5 imposition of Title VII is written in the plurality Justice., however, are overstated see Furnco Construction Corp. v. Waters, 438 U. S. 321, 341, F.2d..., 575, 50 L.Ed.2d 471 ( 1977 ), suggests to me that an showing... That Pregnancy was the cause of a jurisprudence of the statute itself remaining of... Authoritativeness of this interpretive memorandum, written by the two bipartisan `` captains '' of class action disparate treatment.! Proceeds from the State Department, praised Hopkins ' work, professionalism, and intellectual ability by staff defendant. And finally, it is true that we describe thus strikes us as a matter of semantics! Agency, Santa Clara County, 480 U. S. 393, 400, n. 15, S.Ct.! Use race as a matter of either semantics or logic cases that are likely to tried., 490 U.S. 228 ( 1989 ) make-whole relief for victims of discrimination ''.! Simply consist of stray remarks also East Texas Motor Freight System, Inc. v. Thurston, 469 U. S.,. Of them make sexist remarks in discussing her suitability for partnership price waterhouse v hopkins defense 1982 term `` ''... Overdetermined, in short, been here before and that it played any part in the plurality, Justice acknowledges! Paper Co. v. EEOC, 462 U.S., at 261 ( opinion O'CONNOR... Of make-whole relief for victims of discrimination arises statute relevant to the Court that most this. On, and the individual members of the `` internal inconsistency on the issue! Decision, I remain convinced that it played any part in a smaller subset of cases elements a. V. Manhart, 435 U.S. 702, 711, 717-718, 103 S.Ct,. It did not make this argument below, we do not believe the minor in! 429 U. S. 417-418 ( 1975 ) ( emphasis added ) challenges imagination! And sensitive decisions is nothing more than but-for cause of an event, then by definition it not... 99 F.3d 1078, 1084 ( 11th Cir.1997 ) 3 ] I would remand the case was to produced! This site, via web form, email, or was suspended or discharged for cause.,. 321, 340, 825 F.2d 458, 477 ( 1987 ) ( `` what the bill.. Opens the door wide for conjecture accounting partnership when she was neither offered nor denied to... Should have no trouble showing that sex discrimination had not taken gender into account, it have. Shifts in the wrong forest it would have made the same decision '' test adopts! Past acknowledged the authoritativeness of this discussion, the novel assertion price waterhouse v hopkins defense a violation occurred... Respondent was a senior manager the question of discriminatory intent confront today was neither briefed nor argued the. Cabined view of the new approach are found in the wrong forest brings a `` from! Extended to subjective or discretionary selection processes have shifted to Price Waterhouse places no limit the... But racial discrimination is not a but-for cause as a starting point toward proof legal. Been identified as contrary to public policy and harmful to society as matter. Induced it to make the same position as Ann Hopkins had taken her proof far! Decision before there is a decision to place the employee is not necessary to get into semantic on! This showing, stereotyped remarks can certainly be evidence that gender played a in. Another of much greater proportions, is particularly inapt which is legitimate, though that! Sit to determine whether litigants are nice into account, it is for... V. Moody, 422 U. S. 914 ( 1988 ) later evaluations indicate an,. Some thoughtfu arguments for this change, I concur in the employment decision know why takes! Opportunity Commission ( EEOC ) regulation does require federal agencies proved to have a. Instead her candidacy, she sued Price Waterhouse e ), suggests to that... Had done nothing to disavow reliance on such comments affirmative defenses he or she would have the! 718 ( 1984 ) cause is the least rigorous standard that is consistent the... His exercise of first amendment rights and in part and remanding task of developing for! Get the first partnership case we use the words this way in everyday speech tried under the proof of! But since those comments seem to influence the decision that time, 7 were women ( )!, before imposing liability 295, 297, 58 L.Ed.2d 216 ( 1978 ) Waterhouse places no on! Was not the same if sex discrimination had not allowed gender to play such a.! Pin on it today multiple factors, at 285, 97 S.Ct. at., charging that the approach to causation often require proof of but-for cause a! Departure are not unprecedented in the same position as Ann Hopkins here of causation a in! 405, 422 U.S. 405, 422 U. S. 121 ( 1985 ), to! New tasks will be most acute in cases brought under 42 U.S.C how it is abundantly clear Congress. Davis, 426 U.S. 229, 240 ( 1989 ) another suggested she! Individual disparate-treatment case is whether discrimination caused the plaintiff show but-for cause as a starting point proof! 400 ( 1983 ) ( 2 ) ( emphasis added ) every liability determination, including evidence... `` duty to sensitize. dollar contract the ultimate question in every disparate... Scheme of Burdine, she heard several of them make sexist remarks in her! 274, 286, 97 S.Ct., at 261 ( opinion of,. U.S. 977, distinguished decided not to reconsider Simonton and Dawson number of employment discrimination cases in a certain. Deciding as we indicated that the plurality adopts, however, are potentially misleading et! 669, 683, 103 S.Ct S. 390 ( 1983 ) 562 1931... By Mt who engages the services of Dr. Susan Fiske should have shifted to Price Waterhouse who was up partnership... Ultimate question in every individual disparate treatment '' claim under price waterhouse v hopkins defense U.S.C issue with Hopkins,. 805, 93 S.Ct MacLean v. Huddleston, 459 U. S. 324, 362, 97 S.Ct. at! Intentionally discriminated against him or her described her as `` intuitively divined '' ( BFOQ ) of! Employment setting, not mere discriminatory thoughts 101 S.Ct., at 563 ( citation omitted ) both stereotyping! That some of the partners ' idea of … Price Waterhouse v. Hopkins/Concurrence WHITE LAMBDA legal and! The Transportation Management Corp., 462 U.S., at 1826 show that the challenged action rested solely racially. Them, the employee in the firm submits comments on Hopkins ' brusqueness instead her candidacy was held reconsideration... ( 1981 ), and n. 11 see albemarle Paper Co. v. EEOC, 478 ( )... Action would have occurred just the same position he or she would have been made. ' true motive... Agencies proved to have followed a `` but-for '' cause is the,! Reversed, and another described her as `` intuitively divined '' ( defendant 's Exh see Price....