OCTOBER TERM, 2002
Syllabus
DESERT PALACE, INC., DBA CAESARS PALACE HOTEL & CASINO
v. COSTA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 02-679. Argued April 21, 2003-Decided June 9,2003
Title VII of the Civil Rights Act of 1964 makes it an "unlawful
employment practice for an employer ... to discriminate against any
individual ... , because of ... sex." 42 U. S. C. § 2000e-2(a)(1).
In
Price Waterhouse v.
Hopkins, 490 U. S. 228, this Court
considered whether an employment decision is made "because of" sex
in a "mixed-motive" case, i.
e., where both legitimate and
illegitimate reasons motivated the decision. Although the Court
concluded that an employer had an affirmative defense if it could
prove that it would have made the same decision had gender not
played a role, it was divided on the question of when the burden of
proof shifts to an employer to prove the defense. JUSTICE O'CONNOR,
concurring in the judgment, concluded that the burden would shift
only where a disparate treatment plaintiff could show by "direct
evidence that an illegitimate criterion was a substantial factor in
the [employment] decision."
Id., at 276. Congress
subsequently passed the Civil Rights Act of 1991 (1991 Act), which
provides, among other things, that (1) an unlawful employment
practice is established "when the complaining party demonstrates
that ... sex ... was a motivating factor for any employment
practice, even though other factors also motivated the practice,"
42 U. S. C. § 2000e-2(m), and (2) if an individual proves a
violation under § 2000e-2(m), the employer can avail itself of a
limited affirmative defense that restricts the available remedies
if it demonstrates that it would have taken the same action absent
the impermissible motivating factor, § 2000e-5(g)(2)(B).
Respondent, who was petitioner's only female warehouse worker and
heavy equipment operator, had problems with management and her
co-workers, which led to escalating disciplinary sanctions and her
ultimate termination. She subsequently filed this lawsuit,
asserting,
inter alia, a Title VII sex discrimination claim.
Based on the evidence she presented at trial, the District Court
denied petitioner's motion for judgment as a matter of law and
submitted the case to the jury. The District Court instructed the
jury, as relevant here, that if respondent proved by a
preponderance of the evidence that sex was a motivating factor in
the adverse work conditions imposed on her, but petitioner's
conduct was also motivated by lawful
91
reasons, she was entitled to damages unless petitioner proved by
a preponderance of the evidence that it would have treated her
similarly had gender played no role. Petitioner unsuccessfully
objected to this instruction, claiming that respondent had not
adduced "direct evidence" that sex was a motivating factor in
petitioner's decision. The jury awarded respondent backpay and
compensatory and punitive damages, and the District Court denied
petitioner's renewed motion for judgment as a matter of law. A
Ninth Circuit panel vacated and remanded, agreeing with petitioner
that the District Court had erred in giving the mixed-motive
instruction. The en banc court, however, reinstated the judgment,
finding that the 1991 Act does not impose any special evidentiary
requirement.
Held: Direct evidence of discrimination is not required
for a plaintiff to obtain a mixed-motive jury instruction under
Title VII. The starting point for this Court's analysis is the
statutory text. See
Connecticut Nat. Bank v.
Germain,
503 U. S. 249,
253-254. Where, as here, the statute's words are unambiguous, the
judicial inquiry is complete.
Id., at 254. Section
2000e-2(m) unambiguously states that a plaintiff need only
demonstrate that an employer used a forbidden consideration with
respect to any employment practice. On its face, it does not
mention that a plaintiff must make a heightened showing through
direct evidence. Moreover, Congress explicitly defined
"demonstrates" as to "mee[t] the burdens of production and
persuasion." § 2000e-2(m). Had Congress intended to require direct
evidence, it could have included language to that effect in §
2000e-2(m), as it has unequivocally done when imposing heightened
proof requirements in other circumstances. See,
e. g., 42 U.
S. C. § 5851(b)(3)(D). Title VII's silence also suggests that this
Court should not depart from the conventional rule of civil
litigation generally applied in Title VII cases, which requires a
plaintiff to prove his case by a preponderance of the evidence
using direct or circumstantial evidence. This Court has often
acknowledged the utility of circumstantial evidence in
discrimination cases and has never questioned its adequacy in
criminal cases, even though proof beyond a reasonable doubt is
required. Finally, the use of the term "demonstrates" in other
Title VII provisions tends to show that § 2000e-2(m) does not
incorporate a direct evidence requirement. See
e. g., §
2000e2(k)(1)(A)(i). Pp.98-102.
299 F.3d
838, affirmed.
THOMAS, J., delivered the opinion for a unanimous Court.
O'CONNOR, J., filed a concurring opinion,
post, p. 102.
92
Mark J.
Ricciardi argued the cause for petitioner.
With him on the briefs were
Roger K. Quillen, Paul A. Ades,
and
Corbett N.
Gordon.
Irving L. Gornstein argued the cause for the United States as
amicus curiae. On the brief were Solicitor General Olson, Assistant
Attorneys General McCallum and Boyd, Deputy Solicitor General
Clement, Dennis J. Dimsey, and Teresa Kwong.
Robert N.
Peccole argued the cause for respondent.
With him on the brief was
Eric Schnapper. *
JUSTICE THOMAS delivered the opinion of the Court.
The question before us in this case is whether a plaintiff must
present direct evidence of discrimination in order to obtain a
mixed-motive instruction under Title VII of the Civil Rights Act of
1964, as amended by the Civil Rights Act of 1991 (1991 Act). We
hold that direct evidence is not required.
I A
Since 1964, Title VII has made it an "unlawful employment
practice for an employer ... to discriminate against any indi-
* Ann Elizabeth Reesman, Katherine Y. K. Cheung, Stephen A.
Bokat, and Ellen D. Bryant filed a brief for the Equal Employment
Advisory Council et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the
American Federation of Labor and Congress of Industrial
Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence
Gold; for the Association of Trial Lawyers of America by Jeffrey L.
Needle; for the Lawyers' Committee for Civil Rights Under Law et
al. by Michael C. Subit, Barbara R. Arnwine, Thomas J. Henderson,
Michael L. Foreman, Kristin M. Dadey, Thomas W Osborne, Laurie A.
McCann, Daniel B. Kohrman, Melvin Radowitz, Lenora M. Lapidus,
Vincent A. Eng, Judith L. Lichtman, Jocelyn C. Frye, and Dennis C.
Hayes; and for Ann B. Hopkins by Douglas
Ronald B. Schwartz and
Jenifer Bosco filed a brief
for the National Employment Lawyers Association as
amicus
curiae.
93
vidual ... ,
because of such individual's race, color,
religion, sex, or national origin." 78 Stat. 255, 42 U. S. C. §
2000e2(a)(1) (emphasis added). In
Price Waterhouse v.
Hopkins, 490
U. S. 228 (1989), the Court considered whether an employment
decision is made "because of" sex in a "mixedmotive" case, i.
e., where both legitimate and illegitimate reasons motivated
the decision. The Court concluded that, under § 2000e-2(a)(1), an
employer could "avoid a finding of liability ... by proving that it
would have made the same decision even if it had not allowed gender
to play such a role."
Id., at 244; see
id., at 261,
n. (White, J., concurring in judgment); id., at 261 (O'CONNOR, J.,
concurring in judgment). The Court was divided, however, over the
predicate question of when the burden of proof may be shifted to an
employer to prove the affirmative defense.
Justice Brennan, writing for a plurality of four Justices, would
have held that "when a plaintiff ... proves that her gender played
a
motivating part in an 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 even if
it had not taken the plaintiff's gender into account."
Id.,
at 258 (emphasis added). The plurality did not, however, "suggest a
limitation on the possible ways of proving that [gender]
stereotyping played a motivating role in an employment decision."
Id., at 251-252.
Justice White and JUSTICE O'CONNOR both concurred in the
judgment. Justice White would have held that the case was governed
by
Mt. Healthy City Bd. of Ed. v.
Doyle, 429 U. S.
274 (1977), and would have shifted the burden to the employer only
when a plaintiff "show[ed] that the unlawful motive was a
substantial factor in the adverse employment action."
Price Waterhouse, supra, at 259. JUSTICE O'CONNOR, like
Justice White, would have required the plaintiff to show that an
illegitimate consideration was a "substantial factor" in the
employment decision. 490 U. S., at 276. But, under JUSTICE
O'CONNOR'S view, "the burden on the issue
94
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 2000e2(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
95
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 (CAll
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)."
96
Gerber, who had a clean disciplinary record, received only a
5-day suspension.
Respondent subsequently filed this lawsuit against petitioner in
the United States District Court for the District of Nevada,
asserting claims of sex discrimination and sexual harassment under
Title VII. The District Court dismissed the sexual harassment
claim, but allowed the claim for sex discrimination to go to the
jury. At trial, respondent presented evidence that (1) she was
singled out for "intense 'stalking'" by one of her supervisors, (2)
she received harsher discipline than men for the same conduct, (3)
she was treated less favorably than men in the assignment of
overtime, and (4) supervisors repeatedly "stack[ed]" her
disciplinary record and "frequently used or tolerated" sex-based
slurs against her.
299 F.3d
838, 845-846 (CA9 2002).
Based on this evidence, the District Court denied petitioner's
motion for judgment as a matter of law, and submitted the case to
the jury with instructions, two of which are relevant here. First,
without objection from petitioner, the District Court instructed
the jury that" '[t]he plaintiff has the burden of proving ... by a
preponderance of the evidence'" that she "'suffered adverse work
conditions'" and that her sex "'was a motivating factor in any such
work conditions imposed upon her.'"
Id., at 858.
Second, the District Court gave the jury the following
mixed-motive instruction:
"'You have heard evidence that the defendant's treatment of the
plaintiff was motivated by the plaintiff's sex and also by other
lawful reasons. If you find that the plaintiff's sex was a
motivating factor in the defendant's treatment of the plaintiff,
the plaintiff is entitled to your verdict, even if you find that
the defendant's conduct was also motivated by a lawful reason.
"'However, if you find that the defendant's treatment of the
plaintiff was motivated by both gender and lawful reasons, you must
decide whether the plaintiff is entitled
97
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 backpay, 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 banco
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-
98
vating factor.'"
Id., at 853-854 (footnote omitted).
Based on that standard, the Court of Appeals held that respondent's
evidence was sufficient to warrant a mixed-motive instruction and
that a reasonable jury could have found that respondent's sex was a
"motivating factor in her treatment."
Id., at 859. Four
judges of the en banc panel dissented, relying in large part on
"the reasoning of the prior opinion of the three-judge panel."
Id., at 866.
We granted certiorari. 537 U. S. 1099 (2003).
II
This case provides us with the first opportunity to consider the
effects of the 1991 Act on jury instructions in mixedmotive cases.
Specifically, we must decide whether a plaintiff must present
direct evidence of discrimination in order to obtain a mixed-motive
instruction under 42 U. S. C. § 2000e-2(m). Petitioner's argument
on this point proceeds in three steps: (1) JUSTICE O'CONNOR'S
opinion is the holding of
Price Waterhouse; (2) JUSTICE
O'CONNOR'S
Price Waterhouse opinion requires direct evidence
of discrimination before a mixed-motive instruction can be given;
and (3) the 1991 Act does nothing to abrogate that holding. Like
the Court of Appeals, we see no need to address which of the
opinions in
Price Waterhouse is controlling: the third step
of petitioner's argument is flawed, primarily because it is
inconsistent with the text of § 2000e-2(m).
Our precedents make clear that the starting point for our
analysis is the statutory text. See
Connecticut Nat. Bank v.
Germain, 503
U. S. 249, 253-254 (1992). And where, as here, the words of the
statute are unambiguous, the "'judicial inquiry is complete.'"
Id., at 254 (quoting
Rubin v.
United States,
449 U. S. 424,
430 (1981)). Section 2000e2(m) unambiguously states that a
plaintiff need only "demonstrat[e]" that an employer used a
forbidden consideration with respect to "any employment practice."
On its face, the statute does not mention, much less require, that
a plaintiff
99
make a heightened showing through direct evidence. Indeed,
petitioner concedes as much. Tr. of Oral Arg. 9.
Moreover, Congress explicitly defined the term "demonstrates" in
the 1991 Act, leaving little doubt that no special evidentiary
showing is required. Title VII defines the term " 'demonstrates' "
as to "mee[t] the burdens of production and persuasion." §
2000e(m). If Congress intended the term " 'demonstrates' " to
require that the "burdens of production and persuasion" be met by
direct evidence or some other heightened showing, it could have
made that intent clear by including language to that effect in §
2000e(m). Its failure to do so is significant, for Congress has
been unequivocal when imposing heightened proof requirements in
other circumstances, including in other provisions of Title 42.
See,
e. g., 8 U. S. C. § 1158(a)(2)(B) (stating that an
asylum application may not be filed unless an alien "demonstrates
by clear and convincing evidence" that the application was filed
within one year of the alien's arrival in the United States); 42 U.
S. C. § 5851(b)(3)(D) (providing that "[r]elief may not be ordered"
against an employer in retaliation cases involving whistle blowers
under the Atomic Energy Act where the employer is able to
"demonstrat[e] by clear and convincing evidence that it
would have taken the same unfavorable personnel action in the
absence of such behavior" (emphasis added)); cf.
Price
Waterhouse, 490 U. S., at 253 (plurality opinion) ("Only rarely
have we required clear and convincing proof where the action
defended against seeks only conventional relief").
In addition, Title VII's silence with respect to the type of
evidence required in mixed-motive cases also suggests that we
should not depart from the "[c]onventional rul[e] of civil
litigation [that] generally appl[ies] in Title VII cases."
Ibid. That rule requires a plaintiff to prove his case "by a
preponderance of the evidence,"
ibid., using "direct or
circumstantial evidence,"
Postal Service Bd. of Governors v.
Aikens, 460 U.
S. 711, 714, n. 3 (1983). We have often acknowledged
100
the utility of circumstantial evidence in discrimination cases.
For instance, in
Reeves v.
Sanderson Plumbing Products,
Inc., 530 U. S.
133 (2000), we recognized that evidence that a defendant's
explanation for an employment practice is "unworthy of credence" is
"one form of
circumstantial evidence that is probative of
intentional discrimination."
Id., at 147 (emphasis added).
The reason for treating circumstantial and direct evidence alike is
both clear and deep rooted: "Circumstantial evidence is not only
sufficient, but may also be more certain, satisfying and persuasive
than direct evidence."
Rogers v.
Missouri Pacific R.
Co., 352 U. S.
500, 508, n. 17 (1957).
The adequacy of circumstantial evidence also extends beyond
civil cases; we have never questioned the sufficiency of
circumstantial evidence in support of a criminal conviction, even
though proof beyond a reasonable doubt is required. See
Holland v.
United States, 348 U. S. 121, 140 (1954)
(observing that, in criminal cases, circumstantial evidence is
"intrinsically no different from testimonial evidence"). And juries
are routinely instructed that "[t]he law makes no distinction
between the weight or value to be given to either direct or
circumstantial evidence." 1A K. O'Malley, J. Grenig, & W. Lee,
Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed.
2000); see also 4 L. Sand, J. Siffert, W. Loughlin, S. Reiss, &
N. Batterman, Modern Federal Jury Instructions ~ 74.01 (2002)
(model instruction 74-2). It is not surprising, therefore, that
neither petitioner nor its
amici curiae can point to any
other circumstance in which we have restricted a litigant to the
presentation of direct evidence absent some affirmative directive
in a statute. Tr. of Oral Arg. 13.
Finally, the use of the term "demonstrates" in other provisions
of Title VII tends to show further that § 2000e-2(m) does not
incorporate a direct evidence requirement. See,
e. g., 42 U.
S. C. §§ 2000e-2(k)(1)(A)(i), 2000e-5(g)(2)(B). For instance, §
2000e-5(g)(2)(B) requires an employer to "demon-
101
strat[e] that [it] would have taken the same action in the
absence of the impermissible motivating factor" in order to take
advantage of the partial affirmative defense. Due to the similarity
in structure between that provision and § 2000e-2(m), it would be
logical to assume that the term "demonstrates" would carry the same
meaning with respect to both provisions. But when pressed at oral
argument about whether direct evidence is required before the
partial affirmative defense can be invoked, petitioner did not
"agree that ... the defendant or the employer has any heightened
standard" to satisfy. Tr. of Oral Arg. 7. Absent some congressional
indication to the contrary, we decline to give the same term in the
same Act a different meaning depending on whether the rights of the
plaintiff or the defendant are at issue. See
Commissioner v.
Lundy, 516 U.
S. 235, 250 (1996) ("The interrelationship and close proximity
of these provisions of the statute 'presents a classic case for
application of the "normal rule of statutory construction that
identical words used in different parts of the same act are
intended to have the same meaning"'" (quoting
Sullivan v.
Stroop, 496 U.
S. 478, 484 (1990))).
For the reasons stated above, we agree with the Court of Appeals
that no heightened showing is required under § 2000e-2(m).3
***
In order to obtain an instruction under § 2000e-2(m), a
plaintiff need only present sufficient evidence for a reasonable
jury to conclude, by a preponderance of the evidence, that "race,
color, religion, sex, or national origin was a motivating factor
for any employment practice." Because direct evidence of
discrimination is not required in mixed-motive
3 Of course, in light of our conclusion that direct evidence is
not required under § 2000e-2(m), we need not address the second
question on which we granted certiorari: "What are the appropriate
standards for lower courts to follow in making a direct evidence
determination in 'mixed-motive' cases under Title VII?" Pet. for
Cert. i.
102
cases, the Court of Appeals correctly concluded that the
District Court did not abuse its discretion in giving a mixedmotive
instruction to the jury. Accordingly, the judgment of the Court of
Appeals is affirmed.
It is so ordered.
JUSTICE O'CONNOR, concurring.
I join the Court's opinion. In my view, prior to the Civil
Rights Act of 1991, the evidentiary rule we developed to shift the
burden of persuasion in mixed-motive cases was appropriately
applied only where a disparate treatment plaintiff "demonstrated by
direct evidence that an illegitimate factor played a substantial
role" in an adverse employment decision.
Price Waterhouse v.
Hopkins, 490
U. S. 228, 275 (1989) (O'CONNOR, J., concurring in judgment).
This showing triggered "the deterrent purpose of the statute" and
permitted a reasonable factfinder to conclude that "absent further
explanation, the employer's discriminatory motivation 'caused' the
employment decision."
Id., at 265.
As the Court's opinion explains, in the Civil Rights Act of
1991, Congress codified a new evidentiary rule for mixedmotive
cases arising under Title VII.
Ante, at 98-10l. I therefore
agree with the Court that the District Court did not abuse its
discretion in giving a mixed-motive instruction to the jury.
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