Published: 06/01/2003
Wading Into the Quagmire
Caesars Palace fired Catharina Costa in 1994 for excessive disciplinary problems. She had a long history of infractions and suspensions, which culminated in a verbal and physical altercation with a coworker in the warehouse where they worked. Costa, however, was also the only woman in the collective bargaining unit covering the warehouse. They called her “the Lady Teamster.” In addition, Costa had two pieces of evidence that Caesars terminated her because she was a woman. First, the assistant warehouse manager, Karen Hallett, called Costa a “bitch.” Second, Costa was denied overtime while a male coworker was granted overtime because, as Costa testified at trial, “I was told, 'He's a man and has a family to support.'”
Costa sued Caesars for sex discrimination under Title VII, the federal statute prohibiting discrimination on the basis of sex, race, color, religion, and national origin. At trial, she did not claim to be a model employee, but rather sought a “mixed-motive” jury instruction. That is, while she admitted that Caesars had a legitimate reason to fire her (disciplinary problems), she claimed that her gender was also a “motivating factor” in its decision. The jury returned a verdict in Costa's favor for $64,377.74 in back pay, $200,000 in compensatory damages, and $100,000 in punitive damages.
Caesars appealed the result to the federal appeals court, arguing that the trial judge had given erroneous jury instructions on the “mixed-motive” theory of the case. A three-judge panel of the Ninth Circuit Court of Appeals agreed and reversed. That same panel, however, later withdrew and vacated its opinion and, 10 months later, issued a second opinion. The second opinion still reversed the jury's verdict, but it reworked the sections on the law of “mixed-motive” cases under Title VII. This second opinion was itself vacated and the case taken up and heard by the entire federal appeals court for the Pacific states sitting en banc. Almost another year later, a divided en banc court reversed the panel and reinstated the jury's finding of liability. The en banc court, however, held that the 1991 amendments to Title VII largely eliminated damages in “mixed-motive” cases like Costa's.
Does it sound like a confused, yet dangerous, predicament? It is.
Creation of the “Mixed-Motive” Quagmire
“Mixed-motive” cases, like Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002) (en banc), are frequently compared to a quagmire because (1) they are seemingly impossible for an employer to escape from, and (2) the law is hopelessly confused. Indeed, the en banc majority called “mixed-motive” jurisprudence “chaotic,” “a morass,” and “a quagmire that defies characterization despite the valiant efforts of various courts and commentators.”
This legal quandary was created by the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a case that resulted in four opinions, none of which commanded a majority of the Court. Similar to the facts in Costa, in Price Waterhouse the plaintiff, Ann Hopkins, convinced the jury that the accounting firm she worked for, Price Waterhouse, had mixed motives when it failed to make her a partner. On the one hand, she was criticized for being too aggressive, abrasive, unduly harsh, impatient, and generally lacking in interpersonal skills. On the other hand, there was credible evidence that many of the partners held “an impermissibly cabined view of the proper behavior of women.”
The case made it to the Supreme Court, where the Justices split on what sort of evidence of causation was necessary to find an employer liable for sex discrimination under Title VII. The plurality held that if a plaintiff proves that her gender was a motivating factor in the adverse employment decision, then an employer is liable unless it can show it would have taken the same decision absent the illicit motive. Justice O'Connor, concurring in judgment, contended that employers should be held liable only where the plaintiff proves by “direct evidence that an illegitimate criterion was a substantial factor in the employer's decision,” although she, too, allowed a complete defense if the employer could prove it would have taken the same decision absent the discriminatory intent. The dissent argued that the Court had succeeded only in confusing the law.
Time has proven the dissent to have the better of the argument. The en banc court in Costa noted that at least three distinct approaches to “mixed-motive” cases have emerged and “[w]ithin circuits, and often within opinions, different approaches are conflated, mixing burden of persuasion with evidentiary standards, confusing burden of ultimate persuasion with the burden to establish an affirmative defense, and declining to acknowledge the role of circumstantial evidence.”
Superimposed upon the confusion arising out of the case law are the 1991 amendments to the Civil Rights Act, which created Title VII. Courts struggle to discern how Congress's response to Price Waterhouse fits into the overall puzzle.
Practical Significance
After almost 15 years, the Supreme Court is now set to drain the quagmire and restore solid ground to courts and litigants involved in Title VII civil rights cases. It has agreed to review Costa this term. Thus, by the end of June 2003, employers will likely be able to assess their risks in a mixed-motive case with much more precision. And the Lady Teamster, Catharina Costa, will know if she gets to keep her six-figure verdict or if she may take away only the satisfaction of knowing her case dried out the swamp. We will update you when the Court hands down its decision. In the meantime, the most practical advice we can offer is to “be careful out there” while the Supreme Court wades through, and hopefully drains, this chaotic state of the law.