Direct Evidence

In Costa v. Desert Palace, Inc., dba Caesars Palace Hotel & Casino, 299 F.3d 838 (9th Cir. 2002), affirmed, 539 U.S. 90 (2003), the argument was made that in a certain type of employment discrimination case there had to be "direct evidence" of the employer's discriminatory motive. The Ninth Circuit. sitting en banc, replied (id. at 851-855):

C. "DIRECT EVIDENCE"

Following Price Waterhouse and the Civil Rights Act of 1991, much has been made of Justice O'Connor's passing reference to "direct evidence." Indeed, the reference has spawned a virtual cottage industry of litigation over the effect and meaning of the phrase. It is unnecessary, however, to get mired in the debate over whether Justice O'Connor's opinion was controlling or not because the resolution to this conundrum lies in the 1991 amendments.

Justice O'Connor's reference must be interpreted in light of the Court's understanding at the time of Price Waterhouse, namely, that "but for" causation was factored into proof of a Title VII violation, either as an affirmative defense (plurality) or as part of the plaintiff's proof (dissent). Justice O'Connor wrote separately in part to "express [her] views as to when and how the strong medicine of requiring the employer to bear the burden of persuasion on the issue of causation should be administered." Price Waterhouse, 490 U.S. at 262. Her reference to "direct evidence" was intertwined with her concern about a scheme that shifted the burden on the question of liability from the employee to employer, albeit through an affirmative defense. The 1991 Act eliminated any confusion about burden-shifting and the proof necessary for a Title VII violation, so it is not surprising that courts have had trouble converting Justice O'Connor's reference into a legal standard under the new statutory provision.

The resulting jurisprudence has been a quagmire that defies characterization despite the valiant efforts of various courts and commentators. Within 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. We see no need to get bogged down in this debate. Rather, based on the language of the statute - which requires proof of only "a motivating factor" and does not set out any special proof burdens - we conclude that Congress did not impose a special or heightened evidentiary burden on the plaintiff in a Title VII case in which discriminatory animus may have constituted one of two or more reasons for the employer's challenged actions. 42 U.S.C. § 2000e-2(m).

Id. This approach is consistent with recent Supreme Court cases underscoring that no special pleading or proof hurdles may be imposed on Title VII plaintiffs. For example, in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 997-99, 152 L. Ed. 2d 1 (2002), the Court struck down judicially imposed heightened pleading standards. Just two years earlier, in Reeves, 530 U.S. at 148, it declined to require independent evidence of discrimination in addition to prima facie evidence and suffi-cient evidence to rebut pretext. Instead, the Court emphasized that the jury determines the ultimate ques-tion of liability.Sticking to the statutory wording, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80-81, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998), the Court rejected various circuits' special requirements for same-sex sexual harassment cases. Finally, in Burlington Industries, Inc. v. Ellereth, 524 U.S. 742, 752-53, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998), the Court quashed distinctions between "quid pro quo" and "hostile environment" liability structures in harassment cases. Here, too, we believe that we are well advised to follow the statute instead of engaging in judicial invention.

To understand why we should stick to the statute rather than divine a new standard of proof, it is instructive to look at the state of circuit law in this area. Judge Selya has made an attempt to categorize the circuits' approaches in a framework that provides a useful overview. Fernandes, 199 F.3d at 582. He first discusses the "classic" position, an approach that takes the definition of "direct evidence" from the dictionary: "'evidence, which if believed, proves existence of fact in issue without inference or presumption.'" Rollins v. Tech-South, Inc., 833 F.2d 1525, 1529 n. 6 (11th Cir. 1987) (quoting Black's Law Dictionary 413 (5th ed. 1979)) (emphasis in Rollins). Judge Selya notes that "only the Fifth and Tenth Circuits cling consistently to this view, [but] other tribunals have embraced it periodically." Fernandes, 199 F.3d at 582.

Next is the "animus plus" position, which basically requires that the plaintiff prove a particularly strong case - more than ordinarily would be required for an inference of discrimination to be permissible. Our review indicates that a majority of courts that impose a "direct evidence" requirement adhere to this view, either explicitly or im-plicitly. See, e.g., Thomas, 131 F.3d at 204 (defining direct evidence as "a relationship between proof and incidents"); Fernandes, 199 F.3d at 580 (explaining the function of direct evidence as restricting the mixed-motive analysis "to those infrequent cases in which a plaintiff can demonstrate [discrimination] with a high degree of assurance"); Fuller v. Phipps, 67 F.3d 1137, 1143 (4th Cir. 1995) (holding that the determination "hinges on the strength of the evidence"); Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1105 (11th Cir. 2001) (requiring, under the rhetoric of banning circumstantial evidence, "only the most blatant remarks") (citation omitted). Judge Selya places the Fourth, D.C., Ninth, n3 and Third circuits in this camp, not without hesitation, and indicates that other circuits indicate "occasional approval" of this approach. Fernandes, 199 F.3d at 582.

Finally, there is the "animus" position, which simply requires evidence that bears on the alleged discriminatory animus or, put even more simply, evidence of discrimination. Judge Selya places the Second Circuit, the Eighth Circuit "intermittently," and other stray cases, in this camp. Id.

Other courts and commentators have had even more difficulty articulating an order to the chaos. See, e.g., Thomas, 131 F.3d at 205 (citing Fifth, Tenth, and Eleventh Circuits as taking "direct evidence" to mean non-inferential); Christopher Y. Chen, Note, Rethinking the Direct Evidence Requirement: A Suggested Approach in Analyzing Mixed-Motives Discrimination Claims, 86 Cornell L. Rev. 899, 908-15 (2001); Robert Belton, Mixed-Motive Cases in Employment Discrimination Law Revisited: A Brief Updated View of the Swamp, 51 Mercer L. Rev. 651, 663 (2000) ("The line between McDonnell Douglas and Price Waterhouse is very murky.").

Indeed, within circuits, cases sometimes take different approaches. See Wright v. Southland Corp., 187 F.3d 1287, 1294 (11th Cir. 1999) (recognizing intra-circuit splits). For example, the First Circuit first em-braced the animus plus approach in Fernandes, 199 F.3d at 580, but recently implied in Weston-Smith v. Cooley Dickinson Hospital, 282 F.3d 60, 64 (1st Cir. 2002), that it took the classic approach. The Eleventh Circuit first allowed "broad statements" of discriminatory attitude, Burrell v. Bd. of Trustees of Ga. Military Coll., 125 F.3d 1390, 1394 n. 7 (11th Cir. 1997), but later concluded that only statements related to the decisionmaking process were sufficient to overcome the special "direct evidence" hurdle, Bass, 256 F.3d at 1105.

In a carefully considered decision issued shortly af-ter the Civil Rights Act of 1991, the Second Circuit held that direct evidence simply meant evidence sufficient to permit the trier of fact to conclude that an illegitimate characteristic was a motivating factor in the challenged decision under Title VII. Tyler, 958 F.2d at 1185. However, a few months later, a different panel held that discrimination victims face the special hurdle of presenting "evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude." Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992). Although Ostrowski squarely rejected a definition of "direct evidence" as non-circumstantial evidence, id. at 181, some cases quote it as though it supported the noncircumstantial requirement. See, e.g., Cronquist v. City of Minneapolis, 237 F.3d 920, 925 (8th Cir. 2001). Ostrowski was an age discrimination case, but has been widely applied in the Title VII context, apparently without analysis of the difference in the statutes. See, e.g., Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997).

In the Tenth Circuit, the court initially declined to impose a heightened "direct evidence" requirement, only to be ignored by a panel ruling six months later. Compare Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir. 1999) ("A mixed motive instruction is ...appropriate in any case where the evidence is sufficient to allow a trier to find both forbidden and permissible motives." (citation and internal quotation marks omitted)) with Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (imposing a "direct evidence" requirement as classically defined, and excluding "statements of personal opinion, even when reflecting a personal bias").

We believe that the best way out of this morass is a return to the language of the statute, which imposes no special requirement and does not reference "direct evidence." To the extent that courts are using "direct evidence" as a veiled excuse to substitute their own judg-ment for that of the jury, we reject that approach. In so doing, we follow the Second Circuit's Tyler case, 958 F.2d at 1184-85, the Eleventh Circuit's Wright case, 187 F.3d at 1301-02, the Tenth Circuit's approach in Medlock, 164 F.3d at 553, and the Eighth Circuit in Schleiniger v. Des Moines Water Works, 925 F.2d 1100, 1101 (8th Cir. 1991). We also agree with other courts to the extent that they hold that non circumstantial evidence is not the magical threshold for Title VII liability. See, e.g., Thomas, 327 U.S. App. D.C. at 355 (collecting cases).

Put simply, the plaintiff in any Title VII case may establish a violation through a preponderance of evidence (whether direct or circumstantial) n4 that a protected characteristic played "a motivating factor." Like the Supreme Court, "we think it generally undesir-able, where holdings of the Court are not at issue, to dissect the sentences of the United States Reports as though they were the United States Code." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). The "direct evidence" quagmire results from just such a misdirected inquiry, and we decline to be drawn in.