50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 17:  What Happens When An Employer Has Mixed Motives?

What happens when an employer decides to terminate an employee for discriminatory and non-discriminatory reasons?  The Supreme Court gave a surprising answer to that question of “mixed motives” in its seminal 1989 decision: Price Waterhouse v. Hopkins.In 1982, Ann Hopkins was the only female candidate being considered for partner at the auditing firm Price Waterhouse Coopers.  During the previous five years, she had generated more business and billable hours than any of the other 87 applicants up for partnership.  Hopkins was also credited with bringing in a $25 million contract with the State Department, which led to stellar reviews from both partners and clients.

But, Hopkins was also a workplace bully.  Indeed, before she was even being considered for partner, Hopkins had been counseled to improve her relations with staff members.  Hopkins’ perceived shortcomings in this area doomed her bid for partnership. Virtually all of the partners’ negative remarks about Hopkins – even those of partners supporting her – had to do with her “interpersonal skills.”

Despite this, it was clear that some partners also reacted negatively to Hopkins’ personality because she was a woman. One partner described her as “macho”; another suggested that she “overcompensated for being a woman”; a third advised her to take “a course at charm school.”  Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only “because it’s a lady using foul language.” Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” When she was informed her candidacy was on hold, Hopkins was told that to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”  When the partners later refused to re-propose Hopkins for partnership, she sued under Title VII of the Civil Rights Act of 1964 and the case wound its way to the U.S. Supreme Court.

The issue was what to do when an employer is motivated by both legitimate, business reasons and discriminatory reasons.  In a surprising opinion, the Supreme Court held that once a plaintiff in a Title VII case proves that her membership in a protected class played a “motivating part” in an adverse 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 had the impermissible factor not been taken into account.  The rule derived from the numerous opinions in that case was that  the employee must present “direct evidence that an illegitimate criterion was a substantial factor in the decision.”

But most discrimination cases are proven by circumstantial evidence of discrimination, meaning that although no one admits to having discriminated, when puts all of the pieces of the puzzle together, it amounts to a finding of discrimination.  As a result, this decision gave an incredibly powerful tool to employers.

In response to Price Waterhouse, Congress amended Title VII by setting forth new standards in “mixed motive” cases.  First, it provided that a plaintiff may establish the existence of an unlawful employment practice even without such “direct evidence.”  if she can show that unlawful discrimination was a “motivating factor,” even though other factors motivated the practice.  Second, if an employer could demonstrate that it would have taken the same action in the absence of the impermissible motivating factor, the plaintiff was not entitled to damages or reinstatement, but could still obtain declaratory relief, certain types of injunctive relief, and attorneys’ fees.

Recently, the California Supreme Court weighed in on “mixed motive” under the state’s Fair Employment and Housing Act.  In the 2013 decision Harris v. City of Santa Monica, the court held that once a plaintiff has proven to a jury that discrimination was a substantial motivating factor in his or her termination, the employer is nevertheless entitled to demonstrate that “legitimate, non-discriminatory reasons would have led it to make the same decision at the time.  If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, back pay, or an order of reinstatement.”  However, the plaintiff might still be entitled to an award of attorney’s fees or declaratory or injunctive relief.

Harris v. City of Santa Monica is a significant victory for California employers.  While a jury might be convinced that discrimination was part of the reason for an employee’s termination, it must nevertheless rule in the employer’s favor on damages and reinstatement if it finds that the employer still would have terminated the employee anyway.

- Amy Durgan

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