of Governors v. Aikens, 460 U.S. 711, 713-714, n. 2, 103 S.Ct. In this case, I agree with the plurality that petitioner should be called upon to show that the outcome would have been the same if respondent's professional merit had been its only concern. [Footnote 13] In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. The plurality attempts to reconcile its internal inconsistency on the causation issue by describing the employer's showing as an "affirmative defense." United States Postal Service Bd. Critics of the bill that became Title VII labeled it a "thought control bill," and argued that it created a "punishable crime that does not require an illegal external act as a basis for judgment." Some of the plurality's comments with respect to the District Court's findings in this case, however, are potentially misleading. The plurality indicated that, "the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.". "at other times the [but-for] test demands the impossible. As Senator Clark put it, "[t]he bill simply eliminates consideration of color [or other forbidden criteria] from the decision to hire or promote." With respect to the employer's burden, however, the plurality seems to require, at least in most cases, that the employer submit objective evidence that the same result would have occurred absent the unlawful motivation. affirmative defense, that it would have made the same decision even absent the impermissible motive. [Footnote 14] Moreover, proving "'that the same decision would have been justified . Hopkins thus failed to meet the requisite standard of proof after a full trial. Pp. Rather, as Justice O'CONNOR states, her burden was to show that the unlawful motive was a substantial factor in the adverse employment action. of Governors v. Aikens, 460 U.S. 711, 717-718, 103 S.Ct. Croson Co., 488 U.S. 469, 109 S.Ct. In other cases, Title VII's protections properly extend to plaintiffs who are by no means model employees. In a mixed-motives case, where the legitimate motive found would have been ample grounds for the action taken, and the employer credibly testifies that the action would have been taken for the legitimate reasons alone, this should be ample proof. 273, 275, 705 F.2d 1364, 1366 (1983) (Scalia, J.) As the decisionmakers exited the room, she was told by one of those privy to the decisionmaking process that her gender was a major reason for the rejection of her partnership bid. ... or with another of much greater proportions, is available as a defense, the burden is on the defendant to show that . Race and gender always "play a role" in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and about which they may comment in a perfectly neutral and nondiscriminatory fashion. The district court found that, in light of Hopkins’s interpersonal skills, Hopkins would not necessarily have made partner even if … § 2000e-2(a)(1) (emphasis added). She argued that the firm denied her partnership because she didn't fit the partners' idea of … And here, as in Mt. The recommendation of the Admissions Committee, and the decision of the Policy Board, are not controlled by fixed guidelines: a certain number of positive comments from partners will not guarantee a candidate's admission to the partnership, nor will a specific. 450 U.S., at 256, 101 S.Ct., at 1095 (emphasis added). the fire set by him was not the proximate cause of the damage"). Of the 88 persons proposed for partnership that year, only 1-Hopkins-was a woman. Instead, the plaintiff must identify a particular employment practice and, "must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Fiske based her opinion on a review of the submitted comments, explaining that it was commonly accepted practice for social psychologists to reach this kind of conclusion without having met any of the people involved in the decisionmaking process. Mt. Had the District Court found on this record that sex discrimination caused the adverse decision, I doubt it would have been reversible error. The prima facie case established there was not difficult to prove, and was based only on the statistical probability that, when a number of potential causes for an employment decision are eliminated, an inference arises that an illegitimate factor was, in fact, the motivation behind the decision. One of their new tasks will be the generation of a jurisprudence of the meaning of "substantial factor." However, Hopkins … Title VII expressly provides that an employer need not give preferential treatment to employees or applicants of any race, color, religion, sex, or national origin in order to maintain a work force in balance with the general population. Nor have we confined the word "pretext" to the narrow definition which the plurality attempts to pin on it today. First, the explicit consideration of race, color, religion, sex, or national origin in making employment decisions "was the most obvious evil Congress had in mind when it enacted Title VII." There, the evidence showed that the plaintiff, a black man, was far more qualified than any of the white applicants promoted ahead of him. 7213 (1964). See post, at 286-289 We have indeed emphasized in the past that in an individual disparate treatment action the plaintiff bears the burden of persuasion throughout the litigation. . Ante at 490 U. S. 245-247, and n. 11. 263 U.S.App.D.C. Healthy, and as the Court now holds, Hopkins was not required to prove that the illegitimate factor was the only, principal, or true reason for petitioner's action. See, e.g., Hervey v. Little Rock, 787 F.2d 1223, 1233-1234 (CA8 1986) (applying Arlington Heights to public employee's claim of sex discrimination in promotion decision); Lee v. Russell County Bd. Any standard less than but-for, however, simply represents a decision to impose liability without causation. The plurality's causation analysis is misdirected, for it is clear that, whoever bears the burden of proof on the issue, Title VII liability requires a finding of but-for causation. The plurality makes no attempt to address this aspect of our cases. The panel first reiterated its previous holding in Smith v. City of Salem, 378 F.3d 566 (6th Cir. Ante, at 262. See ante, at 250, n. 13. The legislative history of Title VII bears out what its plain language suggests: a substantive violation of the statute only occurs when consideration of an illegitimate criterion is the "but-for" cause of an adverse employment action. We reject the claim, advanced by Price Waterhouse here and by the dissenting judge below, that the District Court clearly erred in finding that Beyer was "responsible for telling [Hopkins] what problems the Policy Board had identified with her candidacy." is simply to make it an illegal practice to use race as a factor in denying employment"). § 2000e-2(j). I write separately to explain why I believe such a departure from the McDonnell Douglas standard is justified in the circumstances presented by this and like cases, and to express my 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. Because the plurality's theory of Title VII causation is ultimately consistent with a but-for standard, it might be said that my disagreement with the plurality's comments on but-for cause is simply academic. Yet the Court in Aikens reiterated that the case was to be tried under the proof scheme of Burdine. . This passage, however, does not suggest that the plaintiff must show but-for cause; it indicates only that, if she does so, she prevails. Today's creation of a new set of rules for "mixed-motives" cases is not mandated by the statute itself. The District Court, as its opinion was construed by the Court of Appeals, so found, 263 U.S.App.D.C. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard. Addition of a second burden-shifting mechanism, the application of which itself depends on assessment of credibility and a determination whether evidence is sufficiently direct and substantial, is not likely to lend clarity to the process. If this state of affairs is proved to the factfinder, there will be no liability under the plurality's own test, for the same decision would have been made had the illegitimate reason never been considered. The U.S. Supreme Court case Price Waterhouse v. Hopkins established the legal precedent of sex stereotyping that also applies to Ms. Stephens’ wrongful termination. Where the plaintiff makes the requisite showing, the burden that shifts to the employer is to show that legitimate employment considerations would have justified the decision without reference to any impermissible motive. 485 U.S. 933 (1988). denied, 475 U.S. 1035 (1986); Ross v. Communications Satellite Corp., 759 F.2d 355, 365-366 (CA4 1985); Peters v. Shreveport, 818 F.2d 1148, 1161 (CA5 1987); McQuillen v. Wisconsin Education Assn. 1109 (1985), and the Court of Appeals for the District of Columbia Circuit affirmed. Indeed, where a public employee brings a "disparate treatment" claim under 42 U.S.C. More important, the testimony showed that, "the person responsible for the promotion decisions at issue had made numerous, derogatory comments about blacks in general and Aikens in particular.". Healthy and Transportation Management, did not require clear and convincing proof. I further agree that this burden shift is properly part of the liability phase of the litigation. The presence of an existing burden-shifting mechanism distinguishes the individual disparate-treatment case from the tort, class-action discrimination, and equal protection cases on which Justice O'CONNOR relies. The plurality claims that the present tense excludes a but-for inquiry as the relevant standard because but-for causation is necessarily concerned with a hypothetical inquiry into how a past event would have occurred absent the contested motivation. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or refuse to hire on the basis of race. Forty-seven of these candidates were admitted to the partnership, 21 were rejected, and 20 -- including Hopkins -- were "held" for reconsideration the following year. , 99 F.3d 1078, 1084 (11th Cir. The shift in the burden of persuasion occurs only where a plaintiff proves by direct evidence that an unlawful motive was a substantial factor actually relied upon in making the decision. She had proved discriminatory input into the decisional process, and had proved that participants in the process considered her failure to conform to the stereotypes credited by a number of the decisionmakers had been a substantial factor in the decision. As we have noted in the past, the award of backpay to a Title VII plaintiff provides "the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges" of discrimination in employment. Co., 191 Wis. 610, 616, 211 N.W. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR. Ante, at 239, n. 3. What did the U.S. Supreme Court determine in the case of Price Waterhouse v. Hopkins? Instead, the Court outlined the following approach: "Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that his conduct was a 'substantial factor' -- or, to put it in other words, that it was a 'motivating factor' in the Board's decision not to rehire him. Second, shifting the burden of persuasion to the employer in a situation like this one creates no incentive to preferential treatment in violation of § 2000e(2)(j). More importantly, as an evidentiary matter, a reasonable factfinder could conclude that absent further explanation, the employer's discriminatory motivation "caused" the employment decision. 490 U. S. 261-279. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 490 U. S. 279. The statute's maintenance of employer prerogatives is evident from the statute itself and from its history, both in Congress and in this Court. 490 U. S. 252-255. Id. In 1989, in Price Waterhouse v.Hopkins, 1× 1. Our holding casts no shadow on Burdine, in which we decided that, even after a plaintiff has made out a prima facie case of discrimination under Title VII, the burden of persuasion does not shift to the employer to show that its stated legitimate reason for the employment decision was the true reason. As an evidentiary matter, where a plaintiff has made this type of strong showing of illicit motivation, the factfinder is entitled to presume that the employer's discriminatory animus made a difference to the outcome, absent proof to the contrary from the employer. Fiske, Hopkins' uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of sex stereotyping -- although Fiske admitted that she could not say with certainty whether any particular comment was the result of stereotyping. Aikens leaves no doubt that the so-called "pretext" framework of Burdine has been considered to provide a flexible means of addressing all individual disparate-treatment claims. We use the words this way in everyday speech. The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision. As Justice O'CONNOR describes it, the plurality "reads the causation requirement out of the statute, and then replaces it with an 'affirmative defense.' That would be to interpret § 706(g) -- a provision defining remedies -- to influence the substantive commands of the statute. First, the Court makes clear that the Price Waterhouse scheme is applicable only in those cases where the plaintiff has produced direct and substantial proof that an impermissible motive was relied upon in making the decision at issue. Perhaps such cases in the future will require a bifurcated trial, with the jury retiring first to make the credibility findings necessary to determine whether the plaintiff has proved that an impermissible factor played a substantial part in the decision, and later hearing evidence on the "same decision" or "pretext" issues. Despite Price Waterhouse's attempt at trial to minimize her contribution to this project, Judge Gesell. It is as if Ann Hopkins were sitting in the hall outside the room where partnership decisions were being made. See McQuillen v. Wisconsin Education Association Council, 830 F.2d 659, 665 (CA7 1987), cert. As the Court of Appeals characterized it, Ann Hopkins proved that Price Waterhouse "permitt[ed] stereotypical attitudes towards women to play a significant, though unquantifiable, role in its decision not to invite her to become a partner." Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief, see, e.g., Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 342 (1974) (defamation), and we find it significant that, in such cases, it was the defendant, rather than the plaintiff, who sought the elevated standard of proof -- suggesting that this standard ordinarily serves as a shield, rather than, as Hopkins seeks to use it, as a sword. Decided May 1, 1989. impact cases, see Watson and Griggs, and on "legitimate, nondiscriminatory reason[s]" in disparate treatment cases, see McDonnell Douglas Corp. v. Green, 411 U. S. 792, 411 U. S. 802 (1973); Texas Dept. While the Court has properly drawn a distinction between the elements of a class action claim and an individual disparate treatment claim, see Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 467 U. S. 873-878 (1984), and I do not suggest the wholesale transposition of rules from one setting to the other, our decisions in Teamsters and Franks do indicate a recognition that presumptions shifting the burden of persuasion based on evidentiary probabilities and the policies behind the statute are not alien to our Title VII jurisprudence. . As the opinions make plain, the evidentiary scheme created today is not for every case in which a plaintiff produces evidence of stray remarks in the workplace. Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. Price Waterhouse v. Hopkins 4 case decided twenty years earlier and is likely a harbinger for impending disparity among the circuits. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. 1251, 1268, 47 L.Ed.2d 444 (1976). In Transportation Management, we upheld the NLRB's interpretation of § 10(c) of the National Labor Relations Act, which forbids a court to order affirmative relief for discriminatory conduct against a union member "if such individual was suspended or discharged for cause." Moreover, since we know that the words "because of" do not mean "solely because of," [Footnote 7] we also know that Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations. The Pregnancy Discrimination Act and BFOQ cases tell us nothing about the case where the employer claims not that a sex-based decision was justified, but that the decision was not sex-based at all. 849, 28 L.Ed.2d 158 (1971), should be extended to subjective or discretionary selection processes. 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