The Eleventh Circuit rules that Price Waterhouse was not overruled by

In Price Waterhouse v. Hopkins, a Title VII sex discrimination, refusal to promote case, the Supreme Court ruled that where there is evidence that sex played a role in an adverse action the employer may still prevail if it demonstrates by a preponderance of the evidence that it would have made the same decision in the absence of its discriminatory animus. The Court's ruling thereby established the "mixed motive" analysis that it observed has been applied in National Labor Relations Act cases and in public employer First Amendment cases brought under 42 U.S.C. § 1983.

The plaintiff in Price Waterhouse introduced a plethora of smoking gun evidence of a gender based animus on the part of the employer. This evidence understandably raised an issue as to the neutrality of the employer's decision. Obviously the mixed motive analysis is applicable to the bases of discrimination covered by Title VII in addition to gender. It has also been applied to actions brought under the ADEA as well as 42 U.S.C. §§1981 and 1983.

The 1991 Civil Rights Act took on a number of Supreme Court decisions that, to put it gently, were not favored by the EEOC and the plaintiff's bar. Price Waterhouse was addressed with the addition of 42 U.S.C. §2000e-2(m) and 42 U.S.C. §2000e-5(g)(2)(B). Under the former section an unlawful employment practice is established "...when the complaining party demonstrate that race, color, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." That section standing alone thereby deprives employers of the opportunity to prevail by proving the "same decision" defense.

The severe consequences of 42 U.S.C. § 2000e-2(m) are ameliorated by 42 U.S.C. § 2000e-5(g)(2)(B). That section limits the recovery where the plaintiff has shown discrimination to be a motivating factor and the employer has demonstrated it would have made the same decision in the absence of an impermissible motivating factor. The court is then limited to granting declaratory and injunctive relief along with attorney's fees and costs "... to be directly attributable to the pursuit of a claim under section 2000e(m) of this title." The court may not, however, award damages or order "... admission, reinstatement, hiring, [or] promotion.."

Thus under the 1991 Civil Rights Act where there is direct evidence of a discriminatory motive on the part of the employer, the employer who is able to establish the mixed motive defense in a Title VII discrimination case will still be subject to a penalty. An injunction may be entered and the defendant will be required to pay the plaintiff's attorney's fees and costs. Certainly even this limited sanction seems to be a severe penalty for acting with justification although having a demonstrated discriminatory animus.

The Eleventh Circuit, in Pennington v. City of Huntsville, 261 F.3d 1212 (11^th Cir. 2001) has joined the other circuits that have considered this issue by declining to apply 2000e(m) to Title VII mixed motive retaliation cases. The court also found that the section does not apply to actions under 42 U.S.C. §1983. In Pennington the Eleventh Circuit looked back to its decision in Lewis v. The Young Mens Christian Association, supra, in which it held that section 2(m) does not state that an unfair employment practice exists where retaliation for filing an age discrimination action is a motivating factor in an adverse employment decision along with neutral motivating factors. Motivation only on the basis of "...race, color, religion or national origin" brings the section into play.

Attorneys not infrequently observe that retaliation claims are likely to be more difficult to defend than the underlying claim of discrimination. In a case where 2000e(m) applies, a plaintiff will be presenting direct evidence to a jury. The defense will be required to prove by a preponderance of the evidence that it would have made the same decision. To avoid the penalties of 2000-5(g)(2)(B) it must also prove the lack of credibility of the direct evidence. The significant challenge that this presents to the defense is a lurking danger in light of the evidence that may construed as "direct." The traditional definition of direct evidence is that "...which, if believed, would prove the existence of a fact [in issue] without inference or presumption ....only the most blatant remarks, whose intent could be nothing other than to discriminate, on the basis of [a protected characteristic]...constitute direct evidence of discrimination." Carter v. City of Miami, 870 F.2d 578, 581-82 (11^th Cir. 1989)

Although this definition on its face allows a fair latitude in determining what constitutes direct evidence, the Eleventh Circuit has been restrictive in applying it. A more embracing definition was proposed by Judge Toflat's decision in Wright v. Southland, "...'direct evidence,' in the context of employment discrimination law, means evidence from which a trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic." So far Judge Toflat's reasoning has not found favor in other Eleventh Circuit cases. In fact the other two judges on the panel, while concurring in the result in the case, declined to join in his opinion. Whatever definition of direct evidence is used, its presence in a case subjects a defendant to being sanctioned, even where it wins, where 2000e-5(m) and 2000-5(g)(2) apply. The reasoning in Pennington clearly puts the defendant out of the reach of those sanctions in retaliation cases and all other cases that do not involve discrimination on the basis of race, color, religion or national origin.

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