But waiver aside, the evidentiary burden revisions in the 1991 Act were narrowly focused on Price Waterhouse v. Hopkins and the distinctions between disparate impact and disparate treatment cases. The use of the term "unlawful employment practice" was continued in the new discrimination subsections, 42 U.S.C. § 2000-2(a)-(d). As section 2000e-2(m) makes clear, "Except as otherwise provided in this subchapter" the burden of proof in unlawful employment practice cases shall be "motivating factor." The only other burden of proof provision, 2000e-2(k), relates to disparate impact cases. The terms "race, color, religion, sex or national origin" are not restrictive and are the predicates for filing a retaliation claim. Our Circuit regularly applies the standard of proof under § 2000e-2 to retaliation claims under § 2000e-3. E.g., Griffiths, 988 F.2d at 468-69; Jalil, 873 F.2d at 706-07.
To prescribe different standards of proof would be illogical and unnecessarily confusing. Here and in numerous other cases, e.g., Jalil, 873 F.2d 701 (3d Cir. 1989), discrimination and retaliation claims arise as part of the same matrix.
The Fourth Circuit and district court cases have applied the 1991 amendments to retaliation cases. See Beinlich v. Curry Development. Inc., 54 F.3d 772 (table), 1995 WL 311577, *3 (4th Cir. May 22, 1995) (unpublished disposition) (sections 2000e-2(m) and 2000e-3(a) together mandate motivating factor test in retaliation cases); Hall v. City of Brawley, 887 F. Supp. 1333, 1995 WL 328020, *7 (S.D.Cal. May 23, 1995) (applying 2000e-5(g)(2)(B), which incorporates 2000e-2(m), to retaliation case); Lewis v. American Foreign Service Ass'n, 846 F. Supp. 77, 82 (D.D.C. 1993) ("Therefore, the Court deems it proper to apply the Civil Rights Act of 1991 . . . to retaliation cases"); Doe v. EEOC, 862 F. Supp. 1310, 1316 (E.D.Pa. 1994) (§ 2000e-2(m) applies to retaliation cases). See also Edward J. Devitt et al., Federal Practice and Instructions § 104.03 (4th ed. 1992 & Supp. 1994) (including retaliation claim within motivating factor instruction). But see Riess v. Dalton, 845 F. Supp. 742, 744-45 (S.D.Cal. 1993).
Defendant's chief argument at trial was that § 2000e-2(m) was meant to apply only to "mixed motive" cases. This case proceeded on a "pretext" theory. Accordingly - defendant reasoned - § 2000e-2(m), despite its inclusive and unambiguous language, should be disregarded in favor of a "determinative effect" instruction a la Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995), an ADEA case.
There is no clear consensus regarding the application of § 2000e-2(m) to pretext cases. Compare Davies v. Philip Morris, U.S.A., 863 F. Supp. 1430, 1437 (D.Colo. 1994) ("To prevail on sex discrimination claim under Title VII, a plaintiff must prove, either directly or indirectly that her sex was a motivating factor for the employment action of which she complains") with Hennessy v. Penril Datacomm Networks, 864 F. Supp. 759, 762 (N.D.Ill. 1994) (no application unless sufficient direct evidence for mixed motives instruction).
Standard jury instruction manuals recommend utilizing "motivating factor" in both types of cases. According to the Eighth Circuit Manual of Model Civil Jury Instructions (1995):
Prior to these amendments . . . liability standards depended upon whether the case was classified as a "pretext" case or a "mixed motive" case. See Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). Under the Civil Rights Act of 1991 . . . the plaintiff prevails on the issue of liability if he or she shows that discrimination was a "motivating factor" in the challenged employment decision.
See also American Bar Association Model Jury Instructions for Employment Litigation 1.02, 1.02[a] (1994) (using "motivating factor" regardless of nature of evidence); Edward J. Devitt et al., Federal Practice and Instructions, supra at 18 § 104.03.
Many courts also utilize § 2000e-2(m) in both mixed motive and pretext cases. Iqbal v. Berkeley Marina Marriott Management, 1995 U.S. Dist. LEXIS 4622, No. 93-3575, 1995 WL 166026, *2 (N.D.Cal. April 5, 1995 (motivating factor standard regardless of type of case); Hall, 887 F. Supp. 1333, 1995 WL 328020 at *7 ("Where the court finds that discrimination was a motivating factor in the adverse employment action, a violation of Title VII is established"); Gray v. Brown, 1994 U.S. Dist. LEXIS 15884, No. 93-2732, 1994 WL 621977, *3 (N.D.Cal. Nov. 1, 1994); Guerin v. American Telephone & Telegraph, 1994 U.S. Dist. LEXIS 7501, No. 93-1522, 1994 WL 245937, *4 (N.D.Cal. June 1, 1994) (same); Turic v. Holland Hospitality, Inc., 849 F. Supp. 544, 552 (W.D. Mich. 1994) (applying section in pretext case). See Lam v. University of Hawaii, 40 F.3d 1551, 1564-65 (9th Cir. 1994); Sheppard v. Riverview Nursing Center Inc., 870 F. Supp. 1369 (D.Md. 1994); Johnson v. El Paso Pathology Group, P.A., 868 F. Supp. 852, 862-63 (W.D.Tex. 1994).
Our Circuit has left open whether the motivating factor instruction should be given in pretext cases. In Hook v. Ernst & Young, 28 F.3d 366, 368, 371 (3d Cir. 1994), "motivating factor" was held not to apply retroactively to a pretext case. Also, in Miller, in holding that a "determinative effect" instruction was proper in a pretext case under the Age Discrimination in Employment Act, the Circuit explicitly did not decide whether § 2000e-2(m) affected the burden of proof for Title VII pretext cases. 47 F.3d at 598 n.10. See also Armbruster v. Unisys Corp., 32 F.3d 768, 771 (3d Cir. 1994).
The legislative intention to overturn Price Waterhouse v. Hopkins is clear. See H.R. Rep. No. 102-40(I), 102nd Cong., 1st Sess. 45, 48 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 586. However, the amendment does not limit itself to a Price Waterhouse-type of mixed motives case. The concern of both the plurality and the dissent in Price-Waterhouse was causation - the meaning of "because of" in the statutory scheme. In overturning that decision, Congress has unequivocally spelled out a simple, comprehensive definition. With the exception of disparate impact cases, it extends to all "unlawful employment practices." The salutary result is a uniform approach to all Title VII disparate treatment cases.
Moreover, contrary to defendant's view, a "motivating factor" instruction does not shift the burden of proof. Plaintiff at all times has the burden of showing by a preponderance that defendant was motivated by a discriminatory purpose. See Feb. 15, 1995, Charge, N.T. 3. The necessary quantum of evidence is changed. Once it is produced, defendant has a partial "mixed motive" affirmative defense that in any event it would have taken the same employment action against plaintiff.
42 U.S.C. § 2000e-5(g)(2)(B); ABA Model Jury Instructions 1.01. Just as in the ordinary tort or contract case, plaintiff's burden does not shift, despite defendant's opportunity to present an avoidance defense.
Here, if it was error not to instruct on "determinative effect," it appears that the jury would nevertheless have reached the same conclusion. The jury specifically found not only that defendant was motivated by an unlawful consideration, but also that it acted "with malice or reckless indifference to [plaintiff's] rights." Jury verdict form. The quantitative or qualitative distinction between "motivating" and "determinative" would therefore seem to have been immaterial to the retaliation verdict.
As regards the significance of the presence of racist graffiti, the jury was instructed that:
There was evidence of race-biased graffiti in a bathroom at the Chester plant. An employer that permits such graffiti to exist may be held responsible for the racial bias conveyed by it if it condones the graffiti or acquiesces in it.