13-E | MIXED MOTIVES

Under Title VII (following the Civil Rights Act of 1991), if an employer’s decisionmaking was based on a “mixed motive” – i.e., a legally permissible motive and an unlawful motive based on a protected class, the employer will be liable and the remedies include:

a) general injunctive relief (provided the plaintiff has standing to seek it);

b) entry of declaratory judgment; and

c) attorneys’ fees and costs.

In a mixed-motives Title VII case, the employer has an affirmative defense to certain aspects of relief (i.e., relief particularized to the employee). 42 U.S.C. §2000e-5(g). The employer has the burden of providing the mixed motives defense, i.e., that it would have made the same decision even if it had not taken the protected class into account.

Because the Civil Rights Act of 1991, which amended Title VII of the Civil Rights Act of 1964, did not refer to retaliation claims, there is an open question whether Title VII’s mixed motives provisions, including the affirmative defense, applies to Title VII retaliation claims. Some courts have held that it does not. See e.g., Kubiko v. Ogden Logistics Services, 181 F.3d 544, 552 n.7 (4th Cir. 1999) (Title VII’s mixed motives provision is not applicable in a retaliation claim).

Likewise, Section 703(m) of the Civil Rights Act of 1991 does not explicitly apply to the ADEA or certain other cases, such as whistleblower or other relation claims (e.g., First Amendment retaliation cases). Therefore, it is possible that these cases are still governed by the Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) rule. Under that rule, an employer may avoid liability by establishing that it would have taken the same action had it considered only lawful bases. The mixed-motive analysis is available only after the plaintiff establishes that discrimination “played a motivating part in an employment decision.” Id. at 251. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006