There is a split in the circuits on the enduring legacy of Price Waterhouse: do employees have to prove the existence of a biased motivating factor by direct evidence in a so-called mixed-motive case? The Fifth Circuit has said “no,” but the Eighth Circuit today says “yes,” tossing a jury verdict for the plaintiff and ordering a revised instruction for the new trial.
Gross v. FBL Financial Services, No. 07-1490 (8th Cir. May 14, 2008): It has never been unscrambled whether the “direct evidence” requirement originally conceived in the solo concurring opinion of Justice O’Connor in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), ought to be the controlling standard. This issue was presented in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), but deemed by the Court (even by Justice O’Connor herself in another solo concurrence) as superfluous in light of the intervening amendment of Title VII in the 1991 Act to provide a mixed-motive rule (42 U.S.C. § 2000e-2(m)). But Price Waterhouse continues to govern non-Title VII cases (ADEA and section 1981, most notably), so the “direct evidence” standard lingers uneasily in the case law (along with its pernicious twin, “stray remarks”).
In Desert Palace, the Court held — in construing the 2000e-2(m) language — that there is no meaningful distinction between direct and circumstantial evidence. “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'” (citation omitted). The Fifth Circuit, analyzing an ADEA case under a mixed-motive analysis, regarded Desert Palace as controlling and dropped the former “direct evidence” requirement. Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004). See also Blair v. Henry Filters, Inc., 505 F.3d 517, 526 n.9 (6th Cir. 2007) (doubting whether juries ought to be instructed on this issue at all).
Yet the Eighth Circuit in Gross holds fast to its prior adherence to Justice O’Connor’s concurring opinion:
“When the Court previously addressed statutory text comparable to the ADEA in Price Waterhouse – “because of such individual’s . . . sex,” 42 U.S.C. §§ 2000e-2(a)(1), (2) (emphasis added) – the result was a fragmented decision from which our court adopted Justice O’Connor’s concurring opinion as the controlling rule. The Court in Desert Palace declined to address which opinion in Price Waterhouse was controlling, 539 U.S. at 98, or to revisit Price Waterhouse‘s interpretation of a statute, unadorned by § 2000e-2m, that prohibits discrimination “because of” an enumerated factor. Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Our cases have concluded that because Price Waterhouse interpreted language identical to that found in the ADEA, we should follow the Price Waterhouse rule in ADEA cases. Desert Palace does not undermine the rationale of these decisions. We thus conclude that the Price Waterhouse rule continues to govern mixed motive instructions in an ADEA case.”
Hence ignoring one of the most famous of all Supreme Court dicta, “[wisdom too often never comes, and so one ought not to reject it merely because it comes late. Henslee v. Union Planters Bank, 335 U.S. 600 (1948) (Frankfurter, J.).