Desert Palace, Inc. v. Costa, 539 U.S. 90, 11 (2003)

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

Opinion of the Court

to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff's gender had played no role in the employment decision.' " Ibid.

Petitioner unsuccessfully objected to this instruction, claiming that respondent had failed to adduce "direct evidence" that sex was a motivating factor in her dismissal or in any of the other adverse employment actions taken against her. The jury rendered a verdict for respondent, awarding back-pay, compensatory damages, and punitive damages. The District Court denied petitioner's renewed motion for judgment as a matter of law.

The Court of Appeals initially vacated and remanded, holding that the District Court had erred in giving the mixed-motive instruction because respondent had failed to present "substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus." 268 F. 3d 882, 884 (CA9 2001). In addition, the panel concluded that petitioner was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that respondent was "terminated because she was a woman." Id., at 890.

The Court of Appeals reinstated the District Court's judgment after rehearing the case en banc. 299 F. 3d 838 (CA9 2002). The en banc court saw no need to decide whether Justice O'Connor's concurrence in Price Waterhouse controlled because it concluded that Justice O'Connor's references to "direct evidence" had been "wholly abrogated" by the 1991 Act. 299 F. 3d, at 850. And, turning "to the language" of 2000e-2(m), the court observed that the statute "imposes no special [evidentiary] requirement and does not reference 'direct evidence.' " Id., at 853. Accordingly, the court concluded that a "plaintiff . . . may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played 'a moti-


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