Desert Palace, Inc. v. Costa, 539 U.S. 90, 7 (2003)

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Cite as: 539 U. S. 90 (2003)

Opinion of the Court

vidual . . . , because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, 42 U. S. C. 2000e- 2(a)(1) (emphasis added). In Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), the 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. The Court concluded that, under 2000e-2(a)(1), an employer could "avoid a finding of liability . . . by proving that it would have made the same decision even if it had not allowed gender to play such a role." Id., at 244; see id., at 261, n. (White, J., concurring in judgment); id., at 261 (O'Connor, J., concurring in judgment). The Court was divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense.

Justice Brennan, writing for a plurality of four Justices, would have held that "when a plaintiff . . . proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account." Id., at 258 (emphasis added). The plurality did not, however, "suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision." Id., at 251-252.

Justice White and Justice O'Connor both concurred in the judgment. Justice White would have held that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), and would have shifted the burden to the employer only when a plaintiff "show[ed] that the unlawful motive was a substantial factor in the adverse employment action." Price Waterhouse, supra, at 259. Justice O'Connor, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a "substantial factor" in the employment decision. 490 U. S., at 276. But, under Justice O'Connor's view, "the burden on the issue

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