Adverse actions, such as, workplace harassment and terminations, often occur due to a blend of discriminatory and non-discriminatory motivations.
For instance, an African American employee gets into an altercation with a white employee. The African American employee is terminated but the white employee is retained. Both employees have comparable work records and are equally to blame for the altercation. In this example, the race of the African American employee could be “a motivating factor” in his or her termination.
A race discrimination claim could advance under a “mixed motive” theory. Plaintiff prevails simply by proving that his or her race was “a motivating factor.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Elements of a “Mixed Motive” Theory:
- Plaintiff is a member of a protected group (race, sex, national origin, religion, etc.) and suffered some sort of adverse employment action.
- Protected status was “a motivating factor” in the decision.
“[A]n unlawful employment practice is established when the complaining party demonstrates that…[protected status (not including retaliation)] was a motivating factor for any employment practice, even though other factors also motivated [and indeed may have caused] the practice.” [Sec. 107 of the Civil Rights Act of 1991]
In Desert Palace v. Costa, 123 S. Ct. 2148 (2003), the U.S. Supreme Court concluded that plaintiffs could use direct or circumstantial evidence to make the showing necessary to merit a mixed-motive jury instruction. “[I]t is sufficient for the [plaintiff] to demonstrate that the employer was motivated to take the adverse employment action by both permissible and forbidden reasons…” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004).
Bryan A. Chapman, Esquire