Desert Palace, Inc. v. Costa, 539 U.S. 90, 8 (2003)

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94

DESERT PALACE, INC. v. COSTA

Opinion of the Court

of causation" would shift to the employer only where "a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision." Ibid. (emphasis added).

Two years after Price Waterhouse, Congress passed the 1991 Act "in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964." Landgraf v. USI Film Products, 511 U. S. 244, 250 (1994). In particular, 107 of the 1991 Act, which is at issue in this case, "respond[ed]" to Price Waterhouse by "setting forth standards applicable in 'mixed motive' cases" in two new statutory provisions.1 511 U. S., at 251. The first establishes an alternative for proving that an "unlawful employment practice" has occurred:

"Except as otherwise provided in this subchapter, 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." 42 U. S. C. 2000e-2(m).

The second provides that, with respect to "a claim in which an individual proves a violation under section 2000e-2(m)," the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney's fees and costs. 2000e-5(g)(2)(B).2 In order to avail itself of

1 This case does not require us to decide when, if ever, 107 applies outside of the mixed-motive context.

2 Title 42 U. S. C. 2000e-5(g)(2)(B) provides in full: "On a claim in which an individual proves a violation under section 2000e- 2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—

"(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly

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