Argument of Speaker
Mr. Speaker: The opinion of the Court in No. 02-679, Desert Palace Inc. versus Costa will be announced by Justice Thomas.
Argument of Justice Thomas
Mr. Thomas: This case comes to us on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
Respondent was employed by petitioner as a warehouse worker and heavy equipment operator.
In 1996, she filed this lawsuit asserting a claim for sex discrimination under Title VII of the Civil Rights Act of 1964.
The case was tried before jury and after hearing the evidence, the District Court gave the jury a mixed motive instruction.
The District Court rejected petitioner's argument that under this Court's decision in Price Waterhouse versus Hopkins, a mixed motive instruction is appropriate only when a plaintiff has presented direct evidence of discrimination.
A Ninth Circuit panel vacated and remanded agreeing with petitioner that the District Court had erred in giving the mixed motive instruction.
On rehearing en banc however, the Court of Appeals reinstated the judgment holding that there is no heightened evidentiary requirement in mixed motive cases.
In an opinion filed with the Clerk today, we affirmed the judgment of the Court of Appeals.
Congress amended Title VII in Civil Rights Act of 1991 which provides among other things that an unlawful employment practice is established "when the complaining party demonstrates that sex was a motivating factor for any employment practice, even though other factors also motivated the practice."
Under this new provision, direct evidence is not required.
Direct evidence of discrimination is not required for a plaintiff to obtain a mixed motive instruction under Title VII.
First, the statute on this phase does not mention, much less require that plaintiff make a showing through direct evidence.
Title VII's silence on this point suggest that we should not depart from our conventional rule of civil litigation that a plaintiff must prove his case by preponderance of evidence using direct or circumstantial evidence.
Second, the use of the term "demonstrates" in other provisions of Title VII tends to show further that the term does not include a direct evidence requirement.
Accordingly, because direct evidence of discrimination is not required in mixed motive cases, the Court of Appeals correctly concluded that the District Court did not abuse its discretion in giving a mixed motive instruction to the jury.
The opinion of the Court is unanimous.
Justice O'Connor has filed a concurring opinion.
