negligence] with another of natural origin, or with another of much greater proportions, is available as a defense, the burden is on the defendant to show that . She argued that the firm denied her partnership because she didn't fit the partners' idea of … Attempts to evade tough decisions by erecting novel theories of liability or multitiered systems of shifting burdens are misguided. Another high-ranking official praised Hopkins' decisiveness, broadmindedness, and "intellectual clarity"; she was, in his words, "a stimulating conversationalist." Today the Court manipulates existing and complex rules for employment discrimination cases in a way certain to result in confusion. 450 U.S., at 253, 101 S.Ct., at 1093. As we acknowledged in McDonnell Douglas, "[t]he facts necessarily will vary in Title VII cases," and the specification of the prima facie case set forth there "is not necessarily applicable in every respect to differing factual situations." Ante, at 241. 618 F. Supp. I do not believe the minor refinement in Title VII procedures accomplished by today's holding can justify the difficulties that will accompany it. Like a disparate treatment plaintiff, one who asserts that governmental action violates the Equal Protection Clause must show that he or she is "the victim of intentional discrimination." Instead, the Court outlined the following approach: "Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that his conduct was a 'substantial factor' or, to put it in other words, that it was a 'motivating factor' in the Board's decision not to rehire him. The shift in the burden of persuasion occurs only where a plaintiff proves by direct evidence that an unlawful motive was a substantial factor actually relied upon in making the decision. See also ante, at 259-260 (WHITE, J., concurring in judgment). of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. " Ante, at 276. She is denied the partnership and brings suit. if such individual was refused . In Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. JUSTICE WHITE'S suggestion, post at 490 U. S. 261, that the employer's own testimony as to the probable decision in the absence of discrimination is due special credence where the court has, contrary to the employer's testimony, found that an illegitimate factor played a part in the decision, is baffling. Compare post, at 286, 289. Downplaying the novelty of its opinion, the plurality claims to have followed a "well worn path" from our prior cases. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 711 (1978). 2362, 2371-2372, 45 L.Ed.2d 280 (1975) (citation omitted). The opinion discusses the situation where two physical forces move an object, and either force acting alone would have moved the object. In the BFOQ context, this is a sensible, indeed necessary, allocation of the burden, for there, by definition, sex is the but-for cause of the employment decision, and the only question remaining is how the employer can justify it. In deciding as we do today, we do not traverse new ground. The words of Title VII are not obscure. In McDonnell Douglas, we described as follows Title VII's goal to eradicate discrimination while preserving workplace efficiency: "The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. Instead, the plaintiff must identify a particular employment practice and, "must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. In such cases there is no question that pregnancy was the cause of the disputed action. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise. See also Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 29, 99 S.Ct. The intent to drive employers to focus on qualifications rather, than on race, religion, sex, or national origin is the theme of a good deal of the statute's legislative history. Pp. Burdine, 450 U.S. at 450 U. S. 253. Price Waterhouse appears to think that we cannot affirm the factual findings of the trial court without deciding that, instead of being overbearing and aggressive and curt, Hopkins is, in fact, kind and considerate and patient. The District Court also based liability on Price Waterhouse's failure to "make partners sensitive to the dangers [of stereotyping], to discourage comments tainted by sexism, or to investigate comments to determine whether they were influenced by stereotypes." ); ante at 490 U. S. 259-260 (opinion of WHITE, J.). See infra at 490 U. S. 247, n. 12. Of the 662 partners at the firm at that time, only seven were women. See McDonald v. Santa Fe Trail Tranportation Co., 427 U. S. 273, 427 U. S. 282, n. 10 (1976). Burdine, 450 U.S. at 450 U. S. 256. In other cases, Title VII's protections properly extend to plaintiffs who are by no means model employees. Congress' intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute. This is a separate question from whether consideration of sex must be a cause of the decision. Our opinions make plain that Burdine applies to all individual disparate-treatment cases, whether the plaintiff offers direct proof that discrimination motivated the employer's actions or chooses the indirect method of showing that the employer's proffered justification is false, that is to say, a pretext. In Wards Cove, the majority adopted the plurality rule in Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777 (1988), which held that the employee must bear the ultimate burden of persuasion at all times in a disparate impact case. Burdine provides an orderly and adequate way to place both inferential and direct proof before the factfinder for a determination whether intentional discrimination has caused the employment decision. See Richmond v. J.A. In Mt. "To discriminate is to make a distinction, to make a difference in treatment or favor." (b) Conventional rules of civil litigation generally apply in Title VII cases, and one of these rules is that the parties need only prove their case by a preponderance of the evidence. Congress could not have chosen a clearer way to indicate that proof of liability under Title VII requires a showing that race, color, religion, sex, or national origin caused the decision at issue. My disagreement stems from the plurality's conclusions concerning the substantive requirement of causation under the statute and its broad statements regarding the applicability of the allocation of the burden of proof applied in this case. But see post at 490 U. S. 277 (O'CONNOR, J., concurring in judgment). Certainly a plausible -- and, one might say, inevitable -- conclusion to draw from this set of circumstances is that the Policy Board, in making its decision, did in fact take into account all of the partners' comments, including the comments that were motivated by stereotypical notions about women's proper deportment. . Here the District Court found that the "comments of the individual partners and the expert evidence of Dr. Fiske do not prove an intentional discriminatory motive or purpose," 618 F. Supp. Continued adherence to the evidentiary scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. is simply to make it an illegal practice to use race as a factor in denying employment"). The plaintiff must then be given an "opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision." § 2000e-2(e), is particularly inapt. 78 Stat. See 462 U.S., at 402-403, 103 S.Ct., at 2474-2475. Ante, at 251 (opinion of BRENNAN, J. In sum, the Burdine framework provides a "sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination," Aikens, 460 U.S., at 715, 103 S.Ct., at 1482, and it should continue to govern the order of proof in Title VII disparate-treatment cases. Some courts have held that, in a suit challenging an affirmative action plan, the question of the plan's validity need not be reached unless the plaintiff shows that the plan was a but-for cause of the adverse decision. Section 703(a)(1) is the statutory basis of the cause of action, and the Court is obligated to explain how its disparate-treatment decisions are consistent with the terms of § 703(a)(1), not with general themes of legislative history or with other parts of the statute that are plainly inapposite. McDonnell Douglas, 411 U.S. at 411 U. S. 802. Healthy City Bd. This is not, as Price Waterhouse suggests, "discrimination in the air"; rather, it is, as Hopkins puts it, "discrimination brought to ground and visited upon" an employee. But he also concluded that the reactions of at least some of the partners were reactions to her as a woman manager. Price Waterhouse v. Hopkins . Where a disparate treatment plaintiff has made such a showing, the burden then rests with the employer to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor. An interpretive memorandum entered into the Congressional Record by Senators Case and Clark, comanagers of the bill in the Senate, is representative of this general theme. She had proved discriminatory input into the decisional process, and had proved that participants in the process considered her failure to conform to the stereotypes credited by a number of the decisionmakers had been a substantial factor in the decision. In this case, the District Court found that a number of the evaluations of Ann Hopkins submitted by partners in the firm overtly referred to her failure to conform to certain gender stereotypes as a factor militating against her election to the partnership. . 490 U. S. 270-276. Price Waterhouse v. Hopkins, 7 held that when a plaintiff in a Title VII case proves that gender (or any other characteris-tic or classification protected under that statute) played a motivating role in an unfavorable employment decision, the employer may avoid liability only by proving as an affirmative defense that it would have taken the same 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. Decided May 1, 1989. the substantive standard for liability under Title VII. See infra at 490 U. S. 255-256. The legislative history of Title VII bears out what its plain language suggests: a substantive violation of the statute only occurs when consideration of an illegitimate criterion is the "but-for" cause of an adverse employment action. Cf. ^5  The plaintiff who engages the services of Dr. Susan Fiske should have no trouble showing that sex discrimination played a part in any decision. If this state of affairs is proved to the factfinder, there will be no liability under the plurality's own test, for the same decision would have been made had the illegitimate reason never been considered. Ann Hopkins was a senior manager in an office of Price Waterhouse when she was proposed for partnership in 1982. 263 U.S.App.D.C. It would be odd to say the least if the evidentiary rules applicable to Title VII actions were themselves dependent on the gender or the skin color of the litigants. The evidentiary rule the Court adopts today should be viewed as a supplement to the careful framework established by our unanimous decisions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 84-3040) (on remand): “Somebody was going to get the first partnership case. If a motive is not a but-for cause of an event, then by definition it did not make a difference to the outcome. in United States Postal Service Bd. While requiring that the plaintiff in a tort suit or a Title VII action prove that the defendant's "breach of duty" was the "but-for" cause of an injury does not generally hamper effective enforcement of the policies behind those causes of action, "at other times, the [but-for] test demands the impossible. Requiring that the plaintiff demonstrate that an illegitimate factor played a substantial role in the employment decision identifies those employment situations where the deterrent purpose of Title VII is most clearly implicated. The defendant should then present its case, including its evidence as to legitimate, nondiscriminatory reasons for the employment decision. Plaintiff's Exh. This is hardly a framework that confines the plaintiff; still less is it a justification for saying that the ultimate burden of proof must be on the employer in a mixed-motives case. In 1989, in Price Waterhouse v. Hopkins, 1× 1. Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. However, nothing in the language, history, or purpose of the statute prohibits adoption of an evidentiary rule which places the burden of persuasion on the defendant to demonstrate that legitimate concerns would have justified an adverse employment action where the plaintiff has convinced the factfinder that a forbidden factor played a substantial role in the employment decision. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed.1984). If analysis like this is to prevail in federal courts, no employer can base any adverse action as to a woman on such attributes." The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision. Much of the plurality's rhetoric is spent denouncing a "but-for" standard of causation. 7247 (1964), quoted in Griggs v. Duke Power Co., supra, at 401 U. S. 434. Healthy standard where plaintiff alleged that unconstitutional motive had contributed to enactment of legislation); Hunter v. Underwood, 471 U. S. 222, 471 U. S. 228 (1985) (same). Hopkins was a very successful manager at a large Accounting Firm. The plurality begins by noting the quite unremarkable fact that Title VII is written in the present tense. The burden of persuasion then. The evidentiary rule the Court adopts today should be viewed as a supplement to the careful framework established by our unanimous decisions in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. Cf. In contrast to the plurality, Justice O'CONNOR acknowledges that the approach adopted today is a "departure from the McDonnell Douglas standard." It can hardly be said that our decision in this case is a departure from cases that are "inapposite." "To an expert of Dr. Fiske's qualifications, it seems plain that no woman could be overbearing, arrogant, or abrasive: any observations to that effect would necessarily be discounted as the product of stereotyping. . 15. See 462 U.S., at 400, n. 5, 103 S.Ct., at 2473, n. 5. While the danger of forcing employers to engage in unwarranted preferential treatment is thus less dramatic in this setting than in the situation the Court faced in Watson, it is far from wholly illusory. Thus, in multiple causation cases, where a breach of duty has been established, the common law of torts has long shifted the burden of proof to multiple defendants to prove that their negligent actions were not the "but-for" cause of the plaintiff's injury. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 462 U. S. 683 (1983), quoting Los Angeles Dept. 1843, 1866, 52 L.Ed.2d 396 (1977), or whether the particular employment decision at issue was "made on the basis of" an impermissible factor, Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875, 104 S.Ct. That phrase, I respectfully submit, embodies a rather simple concept that the plurality labors to ignore. We should not, and need not, deviate from that policy today. Healthy, supra, 429 U.S., at 287, 97 S.Ct., at 576. ... or with another of much greater proportions, is available as a defense, the burden is on the defendant to show that . The most confusing aspect of the plurality's analysis of causation and liability is its internal inconsistency. ", 450 U.S. at 450 U. S. 256 (emphasis added). Phase 1: Proof by a preponderance of evidence that an illegal motive was a motivating factor in a personnel selection decision; Phase 2: Proof by preponderance of evidence that the selection decision made wold have been made anyway in spite of the illegal motive; Phase 3: proof by a preponderance of evidence that the defense … There were clear signs, though, that some of the partners reacted negatively to Hopkins' personality because she was a woman. 1990) (No. must squeeze her proof into Burdine's framework. If this state of affairs is proved to the factfinder, there will be no liability under the plurality's own test, for the same decision would have been made had the illegitimate reason never been considered. If the strong presumption of regularity and rationality of legislative decisionmaking must give way in the face of evidence that race has played a significant part in a legislative decision, I simply cannot believe that Congress intended Title VII to accord more deference to a private employer in the face of evidence that its decisional process has been substantially infected by discrimination. No. Jarek EMPLOYMENT DISCRIMINATION OUTLINE TABLE OF CONTENTS Disparate Treatment. Ann Hopkins had worked at Price Waterhouse's Office of Government Services in Washington, D.C., for five years when the partners in that office proposed her as a candidate for partnership. Before turning to my reasons for disagreement with the Court's disposition of the case, it is important to review the actual holding of today's decision. However, in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), the United States Supreme Court held that discrimination based on the failure of an IDC Quarterly Volume 26, Number 4 (26.4.4) | Page 2 2728, 13837 (1964). [Footnote 14] Moreover, proving "'that the same decision would have been justified . This is none other than the traditional requirement that the plaintiff show but-for cause. See 42 U.S.C. The dissent's summary of our individual disparate treatment cases to date is fair and accurate, and amply demonstrates that the rule we adopt today is at least a change in direction from some of our prior precedents. The language of Title VII and our well considered precedents require this plaintiff to establish that the decision to place her candidacy on hold was made "because of" sex. § 2000e et seq. The judge went on to decide, however, that some of the partners' remarks about Hopkins stemmed from an impermissibly. at 1118, and that, "[b]ecause plaintiff has considerable problems dealing with staff and peers, the Court cannot say that she would have been elected to partnership if the Policy Board's decision had not been tainted by sexually based evaluations,". Id., at 287, 97 S.Ct., at 576 (footnote omitted). . judgment, on the ground that § 2000e-5(g)(2)(B) was inapplicable and the YMCA had established a Price Waterhouse defense. Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 467 U. S. 876 (1984), quoting Teamsters v. United States, 431 U. S. 324, 431 U. S. 360, n. 46 (1977). Harris v. Board of Educ., 105 F.3d 591, 595 (11th Cir.1997). Lambda Legal Defense . A. LTITUDE . 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