posted on Monday, August 25, 2008 3:31 PM
by
Lou Michels
The Mixed-Motive Minefield of Employment Discrimination
A recent case out of the 6th Circuit starkly demonstrates the problems for an employer where the plaintiff alleges a mixed-motive discrimination case. In laying out how these kinds of claims are going to be handled in the 6th Circuit, the court sets up an extremely difficult standard for an employer and virtually guarantees that these cases will go to trial.
The plaintiff was an employee at Baxter Healthcare and received a bad evaluation following several good years of performance. The bad evaluation limited the employee's raise and he brought suit alleging race discrimination.
Of particular interest is the fact that the employee claimed that the decision to downgrade his performance evaluation was motivated "at least in part" by his race. The court found that the employee was raising a mixed-motive claim under 42 U.S.C. ยง 2000e-2(m), which permits a plaintiff to show that the employer used a protected factor (in this case, race) as a "motivating factor" for the adverse employment action, although other factors also motivated the decision.
Mixed-motive cases are a semantic tangle that confuse employers, lawyers and courts alike. The Supreme Court cleared up some of the problem in 2003 in a case called Desert Palace, but the issue the 6th Circuit was confronting, namely what proof framework to use, did not arise in the Supreme Court case.
In this case, the 6th Circuit decided that it would not use the venerable McDonnell Douglas framework to assess a mixed-motive case. Instead, the court took an employee-friendly position, holding that all a plaintiff had to do to defeat summary judgment was to show that race (or any other protected factor) "was a motivating factor", among several others, in the employment decision. In other words, the ultimate question for the court is "whether there are any relevant issues of material fact concerning the defendant's motivation for its adverse employment decision". This standard is extremely low for a plaintiff because inquiries regarding what typically motivates an employer's decision are very fact intensive and are difficult to resolve at the summary judgment phase. As a result, the vast majority of mixed-motive cases will not end at summary judgment and will go to a jury.
That's exactly what happened in this case, where there was at least some anecdotal evidence that the supervisor responsible for writing the evaluation made some racially insensitive remarks.
I can imagine that most plaintiffs would try to bring their cases under a mixed-motive standard if possible. Such an analysis almost guarantees the employer will face the expense of trial and would be a powerful settlement bargaining tool. Several other circuits have followed this type of reasoning, at least, in part. I wouldn't be surprised to see a lot more of these cases popping up given this type of analysis from the bench.