Desert Palace, Inc. v. Costa, 539 U.S. 90, 9 (2003)

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

Opinion of the Court

the affirmative defense, the employer must "demonstrat[e] that [it] would have taken the same action in the absence of the impermissible motivating factor." Ibid.

Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a "motivating factor" in an adverse employment action. See 42 U. S. C. 2000e-2(m). Relying primarily on Justice O'Connor's concurrence in Price Waterhouse, a number of courts have held that direct evidence is required to establish liability under 2000e-2(m). See, e. g., Mohr v. Dustrol, Inc., 306 F. 3d 636, 640-641 (CA8 2002); Fernandes v. Costa Bros. Masonry, Inc., 199 F. 3d 572, 580 (CA1 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F. 3d 1449, 1453-1454 (CA11 1996); Fuller v. Phipps, 67 F. 3d 1137, 1142 (CA4 1995). In the decision below, however, the Ninth Circuit concluded otherwise. See infra, at 97-98.

B

Petitioner Desert Palace, Inc., dba Caesar's Palace Hotel & Casino of Las Vegas, Nevada, employed respondent Catharina Costa as a warehouse worker and heavy equipment operator. Respondent was the only woman in this job and in her local Teamsters bargaining unit.

Respondent experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Petitioner finally terminated respondent after she was involved in a physical altercation in a warehouse elevator with fellow Teamsters member Herbert Gerber. Petitioner disciplined both employees because the facts surrounding the incident were in dispute, but

attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

"(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A)."

95

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