MCDONNELL DOUGLAS ALIVE AND WELL

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MCDONNELL DOUGLAS: ALIVE AND WELL



Christopher R. Hedican,* Jason M. Hedican,** & Mark P.A.

Hudson***







TABLE OF CONTENTS



I. Introduction ..............................................................................................384

II. A Brief History of McDonnell Douglas and Proof of

Discrimination..........................................................................................384

A. McDonnell Douglas ...........................................................................385

B. Texas Department of Community Affairs v. Burdine ........................386

C. United States Postal Service Board of Governors v. Aikens ............387

D. St. Mary’s Honor Center v. Hicks .....................................................388

E. Reeves v. Sanderson Plumbing Products, Inc...................................390

III. Desert Palace, Inc. v. Costa: McDonnell Douglas’s Silent

Affirmation...............................................................................................392

IV. What Does Costa Mean for McDonnell Douglas? .................................394

A. Costa Itself Indicates It Does Not Apply to McDonnell Douglas....395

B. Costa Is Consistent with McDonnell Douglas ..................................396

C. The Supreme Court Recognizes McDonnell Douglas’s

Continued Viability............................................................................399

V. The Unnecessary and Unauthorized Elimination of the McDonnell

Douglas Burden-Shifting Paradigm. .......................................................401





* Partner, Baird, Holm, McEachen, Pederson, Hamann & Strasheim, L.L.P.; J.D.,

M.B.A., Washington University, 1990; B.S., cum laude, Creighton University, 1986. I want

to thank my parents for providing me with my education.

** Partner, Briggs & Morgan, P.A.; J.D., with distinction, University of Iowa

College of Law, 1996; B.A., magna cum laude, St. John’s University, 1993. I want to thank

my parents for my education and my wife, Angela, for her sacrifices and support.

*** Associate, Baird, Holm, McEachen, Pederson, Hamann & Strasheim, L.L.P.;

J.D., with high honors, Drake University Law School, 2003; B.A., Cornell College, 1999. I

want to thank my parents for providing me with my education and Lisa for her constant

support and understanding.



383

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A. Dare v. Wal-Mart Stores, Inc.: The Unauthorized Consequence

of Costa ..............................................................................................404

1. The Dare II Decision and Its Rationale.......................................405

2. Dare II’s Analytical Flaws ..........................................................406

B. Dunbar v. Pepsi-Cola General Bottlers of Iowa, Inc: A More,

But Not Completely, Accurate Approach .........................................411

VI. A Brief Response to The Quiet Demise of McDonnell Douglas ............415

VII. Conclusion................................................................................................422





I. INTRODUCTION



On June 9, 2003, the United States Supreme Court held that direct evidence

is not required for a plaintiff to obtain a mixed-motive jury instruction under

Title VII.1 Despite this straightforward holding, some courts and commentators

quickly declared2 that Desert Palace, Inc. v. Costa3 overruled McDonnell

Douglas Corp. v. Green,4 though Costa never so much as mentioned the case.5

In our opinion, Costa did nothing but clarify the quantum of evidence required to

obtain a mixed-motive instruction. We believe that the amendments to the 1991

Civil Rights Act, the numerous Supreme Court decisions interpreting and

applying McDonnell Douglas, and the decision in Costa itself amply demonstrate

that McDonnell Douglas is alive and well.

We start our analysis in Part II by reviewing the history of McDonnell

Douglas because it illustrates how the scheme works as the backdrop for our

analysis. In Part III, we discuss the essence of Costa. Part IV analyzes what

Costa really means for McDonnell Douglas. Part V critiques the federal courts’

post-Costa decisions. Lastly, Part VI provides a brief response to Professor Van

Detta’s article, which argued that Costa overruled McDonnell Douglas by

implication.6



II. A BRIEF HISTORY OF MCDONNELL DOUGLAS AND PROOF OF





1. Desert Palace, Inc. v. Costa, 539 U.S. 90, 90 (2003).

2. E.g., William R. Corbett, Note, McDonnell Douglas, 1973-2003: May You Rest

in Peace?, 6 U. PA . J. L AB . & E MP . L. 199 (2003); Jeffrey A. Van Detta, “Le roi est mort;

vive le roi!”: An Essay on the Quiet Demise of McDonnell Douglas and the Transformation

of Every Title VII Case After Desert Palace, Inc. v. Costa into a “Mixed-Motives” Case, 52

DRAKE L. REV. 71 (2003).

3. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

4. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

5. See generally Desert Palace, Inc. v. Costa, 539 U.S. 90.

6. Van Detta, supra note 2, at 76.

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DISCRIMINATION



A. McDonnell Douglas



Deciding what Costa means must start with a discussion of McDonnell

Douglas itself and the Supreme Court’s subsequent explanations. According to

the Supreme Court, McDonnell Douglas “raise[d] significant questions as to the

proper order and nature of proof in actions under Title VII.”7 The Court decided

to undertake the case because of the “notable lack of harmony” in the opinions of

the lower courts regarding the allocation of burdens.8 Accordingly, it set out the

now famous three-part framework under which employees may prove disparate

treatment discrimination.9 First, the plaintiff must establish a prima facie case of

discrimination.10 Specifically, this burden may be achieved



by showing (i) that he belongs to a racial minority; (ii) that he applied and

was qualified for a job for which the employer was seeking applicants; (iii)

that, despite his qualifications, he was rejected; and (iv) that, after his

rejection, the position remained open and the employer continued to seek

applicants from persons of complainant’s qualifications.11



After the plaintiff has made a prima facie case of discrimination, “the

burden then must shift to the employer to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.”12 The Court noted,

however, that the proof scheme could not end once an employer provided a

legitimate, nondiscriminatory reason because an employer should not be allowed

to use an otherwise legitimate reason as camouflage for discrimination.13

Therefore, once the employer has produced a legitimate, nondiscriminatory





7. McDonnell Douglas Corp. v. Green, 411 U.S. at 793. Since McDonnell

Douglas, the Court has applied this method of proof to other discrimination statutes, including

the Age Discrimination in Employment Act (ADEA), see, e.g., Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142 (2000) (assuming without deciding that this method of proof

applied); O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311 (1996) (same), the

Americans with Disabilities Act (ADA), see, e.g., Raytheon Co. v. Hernandez, 124 S. Ct. 513,

517-20 (2003) (applying McDonnell Douglas to an ADA discriminatory treatment case), and

42 U.S.C. § 1983, see, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993)

(applying McDonnell Douglas to a § 1983 discriminatory treatment case).

8. McDonnell Douglas Corp. v. Green, 411 U.S. at 801.

9. Id. at 802-04.

10. Id. at 802.

11. Id. The Court noted that the proof required for a prima facie case must be

flexible and might vary from case to case. Id. at n.13.

12. Id. at 802.

13. Id. at 804.

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reason, the employee must be given “a fair opportunity to show that [the

employer’s] stated reason for [the employee’s] rejection was in fact pretext.”14 It

is this mechanism that some courts and commentators declare has been abolished

or at least changed.15



B. Texas Department of Community Affairs v. Burdine



Five years later, the Supreme Court revisited McDonnell Douglas in three

cases to explain the respective burdens of proof.16 In Texas Department of

Community Affairs v. Burdine,17 the Court framed the issue as “whether, after the

plaintiff has proved a prima facie case of discriminatory treatment, the burden

shifts to the defendant to persuade the court by a preponderance of the evidence

that legitimate, nondiscriminatory reasons for the challenged employment action

existed.”18 Stated another way, Burdine decided whether employers have the

ultimate burden of disproving discrimination or whether employees have the

obligation to prove bias. Burdine would prove to be the first case of many in

which the Court declared that the ultimate burden of proving discrimination stays

with the plaintiff, not the employer.19

In reaching its decision, the Supreme Court first analyzed the decision of

the Fifth Circuit Court of Appeals.20 The Fifth Circuit held that the defendant

must prove by a preponderance of the evidence that there was a legitimate,

nondiscriminatory reason for the discharge.21 The Fifth Circuit went a step

further and required the employer to prove that the person it hired instead of the

plaintiff was better qualified than the plaintiff.22 The Court faulted the Fifth

Circuit’s interpretation, holding that the employer’s burden is met if it simply





14. Id.

15. See discussion infra Part V.

16. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); Bd. of Trs. of

Keene State Coll. v. Sweeney, 439 U.S. 24 (1978); Furnco Constr. Corp. v. Waters, 438 U.S.

567 (1978).

17. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).

18. Id. at 250.

19. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)

(holding that the burden of persuasion remains with the plaintiff) (quoting Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. at 253); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507

(1993) (same) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 253); U.S. Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (same) (quoting Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. at 256).

20. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 251-52.

21. Id. at 256 (citing Burdine v. Tex. Dep’t of Cmty. Affairs, 608 F.2d 563, 567

(5th Cir. 1979)).

22. Id. (citing Burdine v. Tex. Dep’t of Cmty. Affairs, 608 F.2d at 567).

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articulates a legitimate, nondiscriminatory reason—explains why it did what it

did.23 Conversely, the court of appeals had required much more by placing “on

the defendant the burden of persuading the court that it had convincing, objective

reasons for preferring the chosen applicant above the plaintiff.”24

The Supreme Court reiterated that, as in all civil cases, “[t]he ultimate

burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.”25

Because the Fifth Circuit erroneously placed the burden of proof on the

defendant, the Supreme Court vacated the Fifth Circuit’s decision and remanded

the case.26 While courts most often cite Burdine for this proposition,27 even

before Burdine, in Board of Trustees of Keene State College v. Sweeney28 and

Furnco Construction Corp. v. Waters,29 the Supreme Court reversed the First and

Seventh Circuit Courts of Appeals for imposing upon the employer the burden to

disprove discrimination after the plaintiff made a prima facie case, rather than

just articulate a legitimate, nondiscriminatory reason.30



C. United States Postal Service Board of Governors v. Aikens31



The Supreme Court further elaborated on the McDonnell Douglas proof

standards in United States Postal Service Board of Governors v. Aikens.32 In

contrast to Burdine, in Aikens, the Court ruled that the lower court had imposed

too high of a burden of proof on the plaintiff, rather than the employer.33 The

Court repeated its declaration in Burdine that the plaintiff bears the ultimate

burden of proof.34 It again cautioned that McDonnell Douglas was never meant

to be rigid and mechanized, but was simply “‘a sensible, orderly way to evaluate

the evidence in light of common experience as it bears on the critical question of





23. Id.

24. Id. at 257 (footnote omitted).

25. Id. at 253 (citing, inter alia, Bd. of Trs. of Keene State Coll. v. Sweeney, 439

U.S. 24, 25 & n.2 (1978) (per curiam)).

26. Id. at 260.

27. See supra note 19 and accompanying text.

28. Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24 (1978) (per curiam).

29. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978).

30. See Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. at 24-25 (reversing

the decision of the Fourth Circuit); Furnco Constr. Corp. v. Waters, 438 U.S. at 580-81 n.9

(reversing the decision of the Seventh Circuit).

31. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983).

32. Id. at 714-15.

33. Id. at 717.

34. Id. at 716 (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256

(1981)).

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discrimination.’”35 Reiterating the rationale of Burdine, the Court stated that if

the employer meets its burden to produce evidence of a legitimate,

nondiscriminatory reason for the employment action, the presumption of

discrimination established in McDonnell Douglas “‘drops from the case.’”36 The

Court advised that, once the presumption disappears, district courts should

resolve the ultimate question of discrimination “just as district courts decide

disputed questions of fact in other civil litigation.”37

Further, the Court held that the district court erred in requiring the plaintiff

to prove discrimination by direct evidence.38 “As in any lawsuit, the plaintiff

may prove his case by direct or circumstantial evidence. The trier of fact should

consider all the evidence, giving it whatever weight and credence it deserves.”39

The district court had also unnecessarily focused on the prima facie case.40 Once

the plaintiff raised the prima facie case and the employer rebutted it, the

presumption was irrelevant, and the issue was simply whether or not the

employer discriminated.41



D. St. Mary’s Honor Center v. Hicks42



Despite the consistent message of McDonnell Douglas, Burdine, Aikens,

and other cases that the ultimate burden of proof stays with the plaintiff, the

Supreme Court again had to resolve the circuits’ disparate interpretations of the

proof standards under McDonnell Douglas.43 In St. Mary’s Honor Center v.

Hicks, the Court reversed the Eighth Circuit and held that the trier of fact’s

rejection of the employer’s stated reasons for its actions does not require a

verdict for the plaintiff.44 The greatest significance of Hicks may be the

majority’s noticeable irritation in having to again explain the McDonnell Douglas

mechanism.45 The words and tone of the majority show that the Justices felt this





35. Id. at 715 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. at 577).

36. Id. at 714-15 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 255

n.10).

37. Id. at 715-16.

38. Id. at 717.

39. Id. at 714 n.3.

40. Id. at 717.

41. Id. at 715.

42. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

43. Id. at 512 (discussing the split among circuits on whether a finding of pretext

mandates a finding of unlawful discrimination) (citations omitted).

44. Id. at 511, 525.

45. See id. at 507 (“Our cases make clear that at that point the shifted burden of

production became irrelevant: ‘If the defendant carries this burden of production, the

presumption raised by the prima facie case is rebutted[.]’”) (quoting Tex. Dep’t of Cmty.

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question had been answered before.46

Citing Burdine, the Court held that the prima facie case, coupled with a

disbelief of the defendant’s reasons, may prove intentional discrimination, but

that rejection of the employer’s reasons alone does not “compel” a finding of

discrimination, as the Eighth Circuit Court of Appeals had ruled.47 The majority

faulted the Eighth Circuit for several reasons.48 First, it reiterated that the

McDonnell Douglas mechanism operates



like all presumptions, as described in Federal Rule of Evidence 301: . . .

“[A] presumption imposes upon the party against whom it is directed the

burden of going forward with evidence to rebut or meet the presumption, but

does not shift to such party the burden of proof in the sense of the risk of

nonpersuasion, which remains throughout the trial upon the party on whom

it was originally cast.”49



It further repeated that once the defendant carries the burden of producing a

legitimate, nondiscriminatory reason, the presumption “drops from the case,” and

the case proceeds to the ultimate question of whether the plaintiff proved

intentional discrimination.50

Second, the burden to prove that the employer’s stated reason for its action

is not true is significantly less onerous than proving the employer discriminated





Affairs v. Burdine, 450 U.S. 248, 255 (1981)); id. at 510 (“To resurrect [the McDonnell

Douglas framework], after the trier of fact has determined that what was ‘produced’ to meet

the burden of production is not credible, flies in the face of our holding in Burdine that to

rebut the presumption ‘[t]he defendant need not persuade the court that it was actually

motivated by the proffered reasons.’”) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. at 254); id. at 511 (“But the Court of Appeals’ holding that rejection of the defendant’s

proffered reasons compels judgment for the plaintiff disregards the fundamental principle of

Rule 301 that a presumption does not shift the burden of proof, and ignores our repeated

admonition that the Title VII plaintiff at all times bears the ‘ultimate burden of persuasion.’”)

(citations omitted); id. at 512 (“Only one unfamiliar with our case law will be upset by the

dissent’s alarum that we are today setting aside ‘settled precedent’ . . . .”) (quoting id. at 525

(Souter, J., dissenting)).

46. See supra note 45 and accompanying text.

47. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 511. The court of appeals reasoned

that, once the plaintiff discredited the employer’s reason for its actions, the employer was in

the same position it would have been in if it had never offered any explanation at all. Id. at

509, 511.

48. Id. at 502-03.

49. Id. at 507 (quoting FED. R. EVID. 301).

50. Id.; see also id. at 510-11 (“The presumption, having fulfilled its role of forcing

the defendant to come forward with some response, simply drops out of the picture.”) (citing

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 255).

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against the employee.51 The Court noted that “nothing in law would permit us to

substitute” this lesser burden for the burden to prove discrimination.52 The

majority further reasoned that “Title VII does not award damages against

employers who cannot prove a nondiscriminatory reason.”53 Only employees

who can prove that discrimination occurred are entitled to a judgment.54

Moreover, proving an employer lied about the reason for its employment action

does not necessarily prove discrimination.55 The factfinder still must decide if

the employer lied as a pretext to hide intentional discrimination.56

The Court concluded by stating:



“[T]he question facing triers of fact in discrimination cases is both sensitive

and difficult . . . . But none of this means that trial courts or reviewing

courts should treat discrimination differently from other ultimate questions

of fact. Nor should they make their inquiry even more difficult by applying

legal rules which were devised to govern ‘the basic allocation of burdens

and order of presentation of proof,’ Burdine, 450 U.S., at 252 . . . , in

deciding this ultimate question.”57



E. Reeves v. Sanderson Plumbing Products, Inc.58



Most recently, in Reeves v. Sanderson Plumbing Products, Inc., the

Supreme Court expanded upon its holding in Hicks to answer “whether a

defendant is entitled to judgment as a matter of law when the plaintiff’s case

consists exclusively of a prima facie case” and proof that the employer’s reason

is not true.59 Importantly, the Court framed the issue as determining what “kind

and amount of evidence [is] necessary to sustain a jury’s verdict that an employer

unlawfully discriminated on the basis of age.”60

The Court began its analysis by repeating that McDonnell Douglas and its





51. Id. at 514-15.

52. Id. at 514.

53. Id. at 523.

54. Id. at 523-24.

55. See id. at 524 (“That the employer’s proffered reason is unpersuasive, or even

obviously contrived, does not necessarily establish that the plaintiff’s proffered reason of race

is correct.”).

56. Id.

57. Id. (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716

(1983)).

58. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).

59. Id. at 137.

60. Id.

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subsequent cases created a scheme for “‘the burden of production and an order

for the presentation of proof in . . . discriminatory-treatment cases.’”61 Once the

employer meets its burden, the McDonnell Douglas framework disappears,62

“and the sole remaining issue [i]s ‘discrimination vel non.’”63 Quoting Hicks, the

Court stated that the factfinder cannot simply disbelieve the employer’s reason

for its actions; rather, “‘the factfinder must believe the plaintiff’s explanation of

intentional discrimination.’”64 The Court advised that, although the McDonnell

Douglas scheme drops from the case once the employer meets its burden of

producing a legitimate, nondiscriminatory reason, evidence of the “prima facie

case, combined with sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude that the employer

unlawfully discriminated.”65

The Court warned, however, that this will not always be enough to prove

discrimination; there will be times when, despite the evidence of pretext, no

reasonable jury could find for the plaintiff.66 Two such possible instances are

when the record conclusively establishes a nondiscriminatory reason for the

employment action67 and when there is weak evidence of pretext coupled with

abundant evidence that no discrimination occurred.68

Ultimately, the Supreme Court reversed the Fifth Circuit holding that the

district court properly denied the employer’s motion for judgment as a matter of

law.69 The Court reasoned that not only was the plaintiff’s evidence of pretext

sufficient to support the jury’s verdict,70 but he also had “introduced additional

evidence [that the decision] was motivated by age-based animus.”71





61. Id. at 142 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 506).

62. Id. at 142-43 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 510).

63. Id. at 143 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

714 (1983)).

64. Id. at 147 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 519).

65. Id. at 148.

66. Id. (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291-92 (D.C. Cir. 1998)

(en banc)); see also Fisher v. Vassar Coll., 114 F.3d 1332, 1338 (2d Cir. 1997) (holding that

the combined effect of a prima facie case and the finding of pretext “is not always sufficient to

sustain an ultimate finding of intentional discrimination”) (citations omitted).

67. See, e.g., Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996)

(stating that the evidence was inconsistent as a matter of law with a finding of age

discrimination when the employee admitted he was terminated for opposing the employer’s

desire to cover up violations of securities laws, which, standing alone, completely refuted the

employee’s claim of age discrimination).

68. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 148.

69. Id. at 153-54.

70. Id. at 146.

71. Id. at 151. In Ryther v. KARE 11, the Eighth Circuit, in analyzing McDonnell

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III. DESERT PALACE, INC. V. COSTA72: MCDONNELL DOUGLAS’S SILENT

AFFIRMATION



“This case does not require us to decide when, if ever, § 107 applies

outside of the mixed-motive context.”73

In 1991, Congress amended the Civil Rights Act of 1964.74 Section 107(a)

of the 1991 Act75 addressed the standards applicable to so-called mixed-motive

cases, in which an illegal criterion actually played a role in the adverse

employment action.76 This provision, passed in partial response77 to the Supreme

Court’s decision in Price Waterhouse v. Hopkins,78 provided an alternative

method79 for proving an “unlawful employment practice”: “Except as otherwise

provided in this subchapter, an unlawful employment practice is established

when the complaining party demonstrates that race, color, religion, sex, or

national origin was a motivating factor for any employment practice, even though

other factors also motivated the practice.”80

If the employee successfully establishes that an illegal criterion was a

“motivating factor” in the unlawful employment practice, under section 107(b) of

the 1991 Act,81 the employer can establish a limited defense by showing that it





Douglas and the appropriate proof necessary to prove a discrimination claim, discussed

numerous types of circumstantial evidence that, combined with pretext, supported the

plaintiff’s claim and the resulting jury verdict. Ryther v. KARE 11, 108 F.3d 832, 838-44

(8th Cir. 1997) (en banc) (citations omitted). Ryther contains an excellent discussion of how

evidence of pretext in conjunction with other circumstantial evidence has long been sufficient

to carry the plaintiff’s burden of proving intentional discrimination. See id.

72. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

73. Id. at 91 n.1.

74. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified

in scattered sections of 42 U.S.C.).

75. Civil Rights Act of 1991 § 107(a), 42 U.S.C. § 2000e-2(m) (2000).

76. See id. (stating that regardless of whether the employment practice was

motivated by other factors, it is an unlawful practice when “the complaining party

demonstrates that race, color, religion, sex, or national origin was a motivating factor”).

77. See Landgraf v. USI Film Prods., 511 U.S. 244, 250-51 (1994) (noting that

Congress passed the 1991 Act “in large part [as] a response to a series of decisions of this

Court interpreting the Civil Rights Acts of 1866 and 1964,” including Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989)).

78. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

79. Before the 1991 Act, the statute only prohibited discrimination “because of” an

illegitimate criterion. See 42 U.S.C. § 2000e-2(a)(1) (stating that it is an “unlawful

employment practice for an employer . . . to discriminate against any individual . . . because of

such individual’s race, color, religion, sex, or national origin”) (emphasis added).

80. Id. § 2000e-2(m).

81. Id. § 2000e-5(g)(2)(B).

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would have made the same decision despite the “impermissible motivating

factor.”82 That is, although the employer can not completely absolve itself from

liability, it can limit the available remedies to declaratory relief, certain types of

injunctive relief, attorney fees, and costs.83

In Costa, the Supreme Court addressed a circuit split as to whether direct

evidence was a prerequisite for receiving a mixed-motive jury instruction under

42 U.S.C. § 2000e-2(m).84 Specifically, the Court addressed “whether a plaintiff

must present direct evidence of discrimination in order to obtain a mixed-motive

instruction under 42 U.S.C. § 2000e-2(m).”85

In rejecting the petitioner’s argument that direct evidence was required to

obtain a mixed-motive instruction under § 2000e-2(m), the Court found that there

was no basis for concluding that a heightened burdened was required.86 First, the

Court observed the 1991 Act’s silence in this regard: “Section 2000e-2(m)

unambiguously states that a plaintiff need only ‘demonstrat[e]’ that an employer

used a forbidden consideration with respect to ‘any employment practice.’”87

The Court concluded that this silence suggested that it was “not [to] depart







82. Id. That section provides:

On a claim in which an individual proves a violation under section 2000e-2(m) of

this title and a respondent demonstrates that the respondent would have taken the

same action in the absence of the impermissible motivating factor, the court—

(i) may grant declaratory relief, injunctive relief (except as provided in clause

(ii)), and attorney’s fees and costs demonstrated to be directly attributable

only to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission,

reinstatement, hiring, promotion, or payment, described in subparagraph (A).

Id.

83. Id.

84. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 91 (2003) (“Since the passage of

the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by

direct evidence that an impermissible consideration was a ‘motivating factor’ in an adverse

employment action. Relying primarily on Justice O’Connor’s concurrence in Price

Waterhouse, a number of courts have held that direct evidence is required to establish liability

under § 2000e-2(m).”) (citing Mohr v. Dustrol, Inc., 306 F.3d 636, 640-41 (8th Cir. 2002);

Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999); Trotter v. Bd. of

Trs. of Univ. of Ala., 91 F.3d 1449, 1453-54 (11th Cir. 1996); Fuller v. Phipps, 67 F.3d 1137,

1142 (4th Cir. 1995)); see also Costa v. Desert Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002)

(en banc) (holding that direct evidence is not required to obtain a mixed-motive jury

instruction), aff’d 539 U.S. 90 (2003).

85. Desert Palace, Inc. v. Costa, 539 U.S at 93.

86. Id. at 93-96.

87. Id. at 94. “Title VII defines the term “‘demonstrates”’ as to ‘mee[t] the burdens

of production and persuasion.’” Id. (quoting 42 U.S.C. § 2000e(m)).

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from the ‘[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title

VII cases.’”88 That is, a plaintiff must establish “his [or her] case ‘by a

preponderance of the evidence,’” whether direct or circumstantial.89 The Court

reasoned that “‘[c]ircumstantial evidence is not only sufficient, but may also be

more certain, satisfying and persuasive than direct evidence.’”90 Finally, the

Court determined that “[a]bsent some congressional indication to the contrary,

we decline to give the same term [demonstrates] in the same Act a different

meaning depending on whether the rights of the plaintiff or the defendant are at

issue.”91 Consequently, the Court unanimously held that direct evidence was

unnecessary to obtain a mixed-motive instruction under § 2000e-2(m):



In order to obtain an instruction under § 2000e-2(m), a plaintiff need only

present sufficient evidence for a reasonable jury to conclude, by a

preponderance of the evidence, that “race, color, religion, sex, or national

origin was a motivating factor for any employment practice.”92



IV. WHAT DOES COSTA MEAN FOR MCDONNELL DOUGLAS?



The holding of Costa is narrow.93 Indeed, excluding the facts and

procedural history, the opinion is only two pages long.94 Nevertheless, some

court opinions95 and commentators96 have concluded that Costa tacitly overruled





88. Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989)).

89. Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. at 253).

90. Id. (quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508 n.17 (1957)).

91. Id. at 95 (citing Comm’r v. Lundy, 516 U.S. 235, 250 (1996)).

92. Id. at 95-96 (quoting 42 U.S.C. § 2000e-2(m)).

93. See supra note 92 and accompanying text.

94. Desert Palace, Inc. v. Costa, 539 U.S. at 94-96.

95. See, e.g., Picha v. CCS Enters., LLC, No. CIV. 02-3826(PAM/RLE), 2004 WL

212866, at *2 (D. Minn. Jan. 30, 2004) (“[T]he Supreme Court’s decision in Desert Palace,

Inc. v. Costa eliminated the McDonnell Douglas burden-shifting scheme for ADA claims.”)

(citation omitted); Veeder v. Cargill, Inc., No. CIV. 02-1711 PAM/RLE, 2003 WL 23018824,

at *6 (D. Minn. Dec. 23, 2003) (“Pursuant to the U.S. Supreme Court’s ruling in Desert

Palace, Inc. v. Costa, the burden-shifting pretext analysis of McDonnell Douglas Corporation

v. Green does not apply.”) (citing Desert Palace, Inc. v. Costa, 539 U.S. at 94-96; Dare v.

Wal-Mart Stores, Inc., 267 F. Supp. 2d 987 (D. Minn. 2003)); Jackson v. Catholic Charities,

No. CIV. 02-0122PAMRLE, 2003 WL 22533330, at *2 n.1 (D. Minn. Nov. 3, 2003) (“As this

Court explained in Dare v. Wal-Mart Stores, Inc., the only logical reading of Desert Palace is

that its holding applies to both mixed-motive and single-motive cases, and the burden-shifting

of McDonnell Douglas is no longer good law.”); Griffith v. City of Des Moines, No. 4:01-

CV-10537, 2003 WL 21976027, at *12 (S.D. Iowa July 3, 2003) (“This Court agrees with the

well-reasoned opinion in Dare and finds that a plaintiff may bring his Title VII claim

‘according to the burdens articulated in [the] Civil Rights Act of 1991,’ without being

confined to the strictures of the McDonnell Douglas burden-shifting framework.”) (quoting

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McDonnell Douglas. With all due respect to the opinions of the judges and

commentators who have concluded otherwise, Costa did not overrule McDonnell

Douglas. The decision itself, as well as the Supreme Court’s precedent, makes

this clear.



A. Costa Itself Indicates It Does Not Apply to McDonnell Douglas



In Costa, Justice Thomas noted that if Congress wanted to require direct

evidence to prove discrimination, it would have said so in the statute.97

Similarly, had the Supreme Court intended to overrule McDonnell Douglas, it

would have said as much, especially given its use of the foregoing reasoning.98

Instead, the Court never mentioned McDonnell Douglas at all.99 Significantly,

Costa favorably cited Reeves, which held that evidence of the prima facie case of

discrimination and pretext under McDonnell Douglas could be sufficient proof to

sustain a jury verdict.100 Had the Court intended to abrogate the McDonnell





Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d at 991) (additional citation omitted); Gonzalez

v. City of Minneapolis, 267 F. Supp. 2d 1004, 1010 (D. Minn. 2003) (same); Skomsky v.

Speedway SuperAmerica, L.L.C., 267 F. Supp. 2d 995, 1000 (D. Minn. 2003) (“Pursuant to

the Supreme Court’s decision in [Costa], the case must be analyzed according to the

provisions of 42 U.S.C. § 2000e-2(m) and § 2000e-5(g)(2)(B).”); Dare v. Wal-Mart Stores,

Inc., 267 F. Supp. 2d at 991-92 (“The Court does not see the efficacy in perpetuating th[e]

legal fiction [of McDonnell Douglas] implicitly exposed by the Supreme Court’s ruling in

Desert Palace.”).

96. See, e.g., Corbett, supra note 2, at 200 (“[T]he old McDonnell Douglas proof

structure is as dead as a doornail.”); Van Detta, supra note 2, at 72 (arguing that after Costa,

McDonnell Douglas is dead); Steven Andrew Smith, The Death of Summary Judgment,

HENNEPIN LAW., Nov./Dec. 2003, at 18 (“[S]ummary judgment as we knew it before Desert

Palace, is dead.”); Direct Evidence of Bias Need Not Be Submitted to Obtain Mixed-Motive

Jury Instruction, 172 Lab. Rel. Rep. (BNA) 248, 251-52 (June 16, 2003) (discussing the

significance of Costa); Experts Discuss Implications of Desert Palace, Inc. v. Costa,

[Employment Practices] Lab. L. Rep. (CCH), at 4 (Aug. 7, 2003) (noting Professor William

Corbett’s opinion that “‘[t]he holding that direct evidence is not required for mixed-motives

analysis implicitly renders the pretext analysis of McDonnell Douglas irrelevant to disparate

treatment cases’”); Supreme Court: High Court’s Ruling in Mixed-Motive Case Did Not

Clear Up Confusion, Attorneys Say, Daily Lab. Rep. (BNA), at 94 (July 18, 2003) (noting the

opinion of Carolyn Wheeler, assistant general counsel for the EEOC, that “[s]ome judges

want to drop the McDonnell Douglas approach entirely”); USSCT: Direct Evidence Is Not

Required, [Insight] Lab. L. Rep. (CCH), at 3 (July 23, 2003) (noting Professor Corbett’s

opinion that McDonnell Douglas is dead).

97. Desert Palace, Inc. v. Costa, 539 U.S. at 94.

98. Cf. id. (explaining that if Congress required a showing of direct evidence, it

would have stated such a requirement in the statute).

99. See generally id.

100. See id. at 94 (“[I]n Reeves v. Sanderson Plumbing Products, Inc., we recognized

that evidence that a defendant’s explanation for an employment practice is ‘unworthy of

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Douglas scheme, it would have been illogical for the Court to reference that

methodology to support the result in Costa. Justice Thomas also specifically

expressed doubt in a footnote as to whether § 2000e-2(m) ever applies to single-

motive cases.101 Such a footnote would have been pointless if Costa overruled

McDonnell Douglas.



B. Costa Is Consistent with McDonnell Douglas



Most importantly, Costa’s holding is fully consistent with McDonnell

Douglas and its progeny.102 Costa only comes into play after the plaintiff has

proved discrimination.103 A plaintiff is not entitled to a mixed-motive instruction

unless he or she can produce enough evidence to enable a reasonable jury to find

discrimination was a motivating factor in the employment decision.104 The

corollary of this is that the jury does not even get to address the affirmative

defense105 unless the plaintiff can carry his burden of proving intentional





credence’ is ‘one form of circumstantial evidence that is probative of intentional

discrimination.’”) (emphasis by the Costa Court) (quoting Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 147 (2000)).

101. See id. at 91 n.1 (“This case does not require us to decide when, if ever, § 107

applies outside of the mixed-motive context.”).

102. The definition contained in the 1991 Civil Rights Act also shows that Congress

intended that McDonnell Douglas survive the 1991 Act despite the codification of the mixed-

motive instruction. See 42 U.S.C. § 2000e(m) (2000) (defining “demonstrates”). Section

2000e-2(m) states that “an unlawful employment practice is established when the complaining

party demonstrates that race, color, religion, sex, or national origin was a motivating factor for

any employment practice . . . .” Id. § 2000e-2(m). The statute also states: “The term

‘demonstrates’ means meets the burdens of production and persuasion.” Id. § 2000e(m).

Given that McDonnell Douglas’s proof standard contemplates intermediate burdens of

production and an ultimate burden of persuasion on the plaintiff, see Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. at 143 (discussing the burdens of production and persuasion

under McDonnell Douglas and its progeny), the definition squarely contemplates the use of

McDonnell Douglas to prove discrimination. Otherwise, there would have been no reason to

include the word “production”; it simply could have mentioned persuasion. Indeed, Congress

may have found it unnecessary to even use the term “demonstrates” in the Act.

103. Desert Palace, Inc. v. Costa, 539 U.S. at 92 (noting that the plaintiff’s sex

discrimination claim had survived summary judgment and a motion for judgment as a matter

of law before the jury instruction issue arose).

104. Id. at 95-96. The district court in Costa instructed that “‘“the plaintiff has the

burden of proving . . . by a preponderance of the evidence” that she “suffered adverse work

conditions” and that her sex “was a motivating factor in any such work conditions imposed

upon her.”’” Id. at 92 (quoting Costa v. Desert Palace, Inc., 299 F.3d 838, 858 (9th Cir. 2002)

(en banc)). There was no assigned error in this instruction. See id. (noting that the employer

“unsuccessfully objected to this instruction”).

105. Section 2000e-5(g)(2)(B) provides a limited affirmative defense for employers

who considered an illegitimate motivating factor in an employment decision but would have

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discrimination.106 Costa does not purport to relieve the plaintiff of the ultimate

burden of proof. Nor does Costa address or alter the means by which plaintiffs

may prove discrimination.

A plaintiff may continue to prove discrimination under the McDonnell

Douglas methodology; Costa has not changed that at all.107 Under the

McDonnell Douglas proof scheme, once the plaintiff has made a prima facie

case, if the employer articulates a legitimate, nondiscriminatory reason, the entire

presumption drops from the case.108 The only issue then remaining is whether the

employer intentionally discriminated,109 and the burden to prove that rests solely

with the plaintiff.110 The plaintiff may prove intentional discrimination with (1)

sufficient evidence of the prima facie case and pretext;111 (2) other circumstantial







made the same decision even in the absence of the illegitimate consideration. 42 U.S.C. §

2000e-5(g)(2)(B). The defense “does not absolve [the employer] of liability, but restricts the

remedies available to the plaintiff . . . [to] declaratory relief, certain types of injunctive relief,

and attorney’s fees and costs.” Desert Palace, Inc. v. Costa, 539 U.S. at 91 (citing 42 U.S.C. §

2000e-5(g)(2)(B)).

106. See 42 U.S.C. § 2000e-5(g)(2)(B) (stating that the limited affirmative defense

applies “[o]n a claim in which an individual proves a violation under section 2000e-2(m)”)

(emphasis added). This was also the holding in Price Waterhouse:

[S]ince we hold that the plaintiff retains the burden of persuasion on the issue

whether gender played a part in the employment decision, the situation before us is

not the one of “shifting burdens” that we addressed in Burdine. Instead, the

employer’s burden is most appropriately deemed an affirmative defense: the plaintiff

must persuade the factfinder on one point, and then the employer, if it wishes to

prevail, must persuade it on another.

Price Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989) (citation and footnote omitted); see

id. at n.11 (“[B]oth the plaintiff and defendant bear a burden of proof in cases such as this one

. . . .”). The 1991 Act simply codified the affirmative defense and precluded employers from

escaping all liability upon meeting its burden of persuasion, as Price Waterhouse had allowed.

42 U.S.C. § 2000e-5(g)(2)(B).

107. See generally Raytheon Co. v. Hernandez, 124 S. Ct. 513 (2003) (applying the

McDonnell Douglas framework to a disparate treatment claim under the ADA).

108. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)

(“[T]he presumption of discrimination ‘drops out of the picture’ once the defendant meets its

burden of production.”) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).

109. See id. at 142-43 (explaining that once the employer articulates a legitimate,

nondiscriminatory reason, “the sole remaining issue [i]s ‘discrimination vel non.’”) (quoting

U.S. Postal Serv. Bd. of Governors v. Aiken, 460 U.S. 711, 714 (1983)).

110. See id. at 143 (“‘[T]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at all times with the

plaintiff.’”) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

111. See id. at 149 (stating that “a prima facie case and sufficient evidence to reject

the employer’s explanation may permit a finding of liability”).

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evidence of discrimination;112 (3) a combination of the prima facie case, pretext,

and other circumstantial evidence;113 or (4) direct evidence.114 If the plaintiff has

no such evidence, then the plaintiff’s case will not advance to the jury.115 If,

however, the plaintiff can make a submissible case using McDonnell Douglas,

then he or she is entitled to the mixed-motive instruction.116 In short, Costa in no

way alters a plaintiff’s obligation to prove he or she was the victim of intentional

discrimination. Costa does not shift the burden of disproving discrimination to

the employer until the plaintiff meets his or her ultimate burden of proof, at

which point the employer bears the burden of proving the limited affirmative

defense.117 Because McDonnell Douglas solely concerns the plaintiff’s burden





112. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 714 n.3 (“[T]he

plaintiff may prove his case by direct or circumstantial evidence.”).

113. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 151 (“[T]he court

should review the record as a whole . . . .”) (citation omitted); Troupe v. May Dep’t Stores

Co., 20 F.3d 734, 736 (7th Cir. 1994) (“Different kinds and combinations of evidence can

create a triable issue of intentional discrimination . . . .”).

114. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 714 n.3 (stating

that direct evidence is one method of proof of discriminatory intent); Price Waterhouse v.

Hopkins, 490 U.S. 228, 276 (1989) (“[A] disparate treatment plaintiff must show by direct

evidence that an illegitimate criterion was a substantial factor in the decision.”) (O’Connor, J.,

concurring in the judgment).

115. See, e.g., Taylor v. QHG of Springdale, Inc., 218 F.3d 898, 900-01 (8th Cir.

2000) (“Reeves [will] only help[] [a plaintiff] if [the plaintiff] has [made a prima facie case

and] produced sufficient evidence to reject the [employer’s] legitimate explanation.”); see also

Price v. Fed. Express Corp., 283 F.3d 715, 721 n.4 (5th Cir. 2002) (“Reeves does not relieve a

plaintiff of his burden to present evidence that will permit a rational factfinder to infer

intentional discrimination.”) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at

153); Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001) (“After Reeves, the

court must examine each case to ‘determine whether the plaintiff could satisfy his ultimate

burden of persuading the trier of fact that the defendant intentionally discriminated against the

plaintiff.’”) (quoting Schnable v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000)).

116. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 95-96 (2003) (“In order to obtain

an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence . . . that

‘race, color, religion, sex, or national origin was a motivating factor for any employment

practice.’”) (quoting 42 U.S.C. § 2000e-2(m) (2000)).

117. The Costa decision itself states that the affirmative defense is only available in

“‘a claim in which an individual proves a violation under section 2000e-2(m).’” Id. at 91

(quoting 42 U.S.C. § 2000e-5(g)(2)(B)). Significantly, the statute specifically states that the

affirmative defense applies in a case “in which an individual proves a violation under section

2000e-2(m).” 42 U.S.C. § 2000e-5(g)(2)(B) (emphasis added). This is completely consistent

with the pronouncements in McDonnell Douglas and is an affirmation that Congress did not

intend to relieve plaintiffs of the burden to first establish discrimination. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) (“‘Congress did not intend by Title VII . . .

to guarantee a job to every person regardless of qualifications . . . . Discriminatory preference

. . . is precisely and only what Congress has proscribed.’”) (quoting Griggs v. Duke Power

Co., 401 U.S. 424, 430-31 (1971)).

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and means of proving discrimination, Costa did not affect it. The Appendix to

this Article illustrates the interaction between Costa, McDonnell Douglas, and

the cases that interpreted McDonnell Douglas. It is clear from this flowchart that

Costa has not changed McDonnell Douglas.

Indeed, prior to Costa, courts recognized that proving pretext under

McDonnell Douglas was just one form of circumstantial evidence that employees

could use to prove intentional discrimination.118 Judge Posner articulated three

types of circumstantial evidence:



The first consists of suspicious timing, ambiguous statements oral or written,

behavior toward or comments directed at other employees in the protected

group, and other bits and pieces from which an inference of discriminatory

intent might be drawn. . . . Second is evidence, whether or not rigorously

statistical, that employees similarly situated to the plaintiff other than in the

characteristic (pregnancy, sex, race, or whatever) on which an employer is

forbidden to base a difference in treatment received systematically better

treatment. And third is evidence that the plaintiff was qualified for the job

in question but passed over in favor of (or replaced by) a person not having

the forbidden characteristic and that the employer’s stated reason for the

difference in treatment is unworthy of belief, a mere pretext for

discrimination. Each type of evidence is sufficient by itself (depending of

course on its strength in relation to whatever other evidence is in the case) to

support a judgment for the plaintiff; or they can be used together.119



Judge Posner stated that any of this evidence could meet the ultimate burden of

proving discrimination.120



C. The Supreme Court Recognizes McDonnell Douglas’s Continued Viability



Raytheon Co. v. Hernandez, 121 the Supreme Court’s most recent

employment decision after Costa, directly confirmed that McDonnell Douglas is

alive.122 On December 2, 2003, Justice Thomas addressed another appeal from







118. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143 (“[T]he

plaintiff may attempt to establish that he was the victim of intentional discrimination ‘by

showing that the employer’s proffered explanation is unworthy of credence.’”) (emphasis

added) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)); Troupe

v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994) (“Different kinds and combinations

of evidence can create a triable issue of intentional discrimination . . . .”).

119. Troupe v. May Dep’t Stores Co., 20 F.3d at 736 (citations omitted).

120. Id.

121. Raytheon Co. v. Hernandez, 124 S. Ct. 513 (2003).

122. See generally id. (applying the McDonnell Douglas burden-shifting analysis).

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the Ninth Circuit Court of Appeals.123 The Court noted that the Ninth Circuit

analyzed the plaintiff’s ADA124 disparate treatment claim “under the familiar

burden-shifting approach first adopted by this Court in McDonnell Douglas

Corp. v. Green.”125 It further observed that “[t]he Courts of Appeals have

consistently utilized this burden-shifting approach when reviewing motions for

summary judgment in disparate-treatment cases.”126 Holding that the Ninth

Circuit had not properly applied the McDonnell Douglas scheme, the Supreme

Court reversed and remanded the case.127

If the Court—and in particular Justice Thomas—had opined that Costa

overruled McDonnell Douglas, then Raytheon presented an excellent opportunity

for the Court to say so.128 It is inconceivable that not even one Justice wrote a

dissenting opinion to declare that Costa had abrogated, or at least neutralized,

McDonnell Douglas, if that were the case. Indeed, the Court would have been

compelled to reverse the Ninth Circuit on the grounds that it had erred in

applying the McDonnell Douglas scheme at all if Costa had abrogated

McDonnell Douglas. Instead, the Court acknowledged the viability of the

scheme and reversed the Court of Appeals for failing to apply it correctly.129 As

one district court aptly put it:







123. Id. at 515.

124. Judge Magnuson has applied his interpretation of Costa in Dare to ADA claims.

E.g., Skomsky v. SuperAmerica, L.L.C., 267 F. Supp. 2d 995, 1000 (D. Minn. 2003); see also

Curry v. HON Co., No. 4:02-CV-10233, 2004 U.S. Dist. LEXIS 3329, at *12-13 (S.D. Iowa

Feb. 26, 2004) (following Skomsky); LeClair v. Wells Fargo Bank Iowa N.A., 291 F. Supp. 2d

873, 880 (S.D. Iowa 2003) (same). Accordingly, Professor Van Detta’s assertion that

Raytheon is distinguishable because it is an ADA case is not persuasive.

125. Raytheon Co. v. Hernandez, 124 S. Ct. at 517 (citation and footnote omitted).

126. Id. at n.3 (citing Pugh v. Attica, 259 F.3d 619, 626 (7th Cir. 2001)).

127. See id. at 520-21 (stating that after the employer articulated a legitimate,

nondiscriminatory reason, the only issue was “whether there was sufficient evidence from

which a jury could conclude that [the employer] did make its employment decision based on

[the employee’s] status as a disabled despite [the employer’s] proffered explanation”).

128. See, e.g., Lloyd v. City of Bethlehem, No. Civ.A. 02-CV-00830, 2004 WL

540452, at *5 (E.D. Pa. Mar. 3, 2004) (“[T]he Supreme Court applied the McDonnell Douglas

framework to a post-Desert Palace case, and indeed, did not mention Desert Palace in its

opinion. Thus, contrary to the district court determination in Dare, we conclude that

McDonnell Douglas is still valid precedent.”). In Lloyd, the court ultimately agreed with

Judge Bennett’s rationale in Dunbar. Id.

129. Id. at 520-21. Raytheon did not qualify its holding to suggest that the issue of

whether McDonnell Douglas remained valid had not been raised as an issue or need not be

decided as it has in other cases. Cf. Toyota Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184,

200 (2002) (“Because of the conceptual difficulties inherent in the argument that working

could be a major life activity, we have been hesitant to hold as much, and we need not decide

this difficult question today.”).

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As an initial matter the court declines to accept [the plaintiff’s] suggestion

that the McDonnell Douglas burden-shifting paradigm no longer exists after

Desert Palace. This would not be an evolution but a revolution in

employment discrimination law. If the Supreme Court were going to make a

draconian departure from 30 years of well-established employment

discrimination precedent, it would have done so with unmistakable clarity.

In Desert Palace, the Supreme Court does not even intimate that it is

overruling, restricting or clarifying McDonnell Douglas.130



Admittedly, the McDonnell Douglas mechanism is far more subtle and

complex than it appears to be; numerous district courts and appellate courts have

struggled to apply it correctly over more than two decades.131 It should not,

therefore, be surprising that there is disagreement over what Costa means for

McDonnell Douglas.132 Based on the foregoing discussion, we feel the answer is

clear. Nevertheless, the decisions of the courts that have expressed their opinion

on Costa will be analyzed. This analysis shows that the law does not support

these decisions.



V. THE UNNECESSARY AND UNAUTHORIZED ELIMINATION OF THE

MCDONNELL DOUGLAS BURDEN-SHIFTING PARADIGM.



Although Costa arose during trial, and the Supreme Court declined to

address the impact of the 1991 Act to single-motive claims,133 commentators134

and courts have struggled with Costa’s perceived effect on summary judgment

and the traditional McDonnell Douglas analysis. Generally, the courts’ responses

fall within five categories: (1) those courts that believe Costa overturned

McDonnell Douglas;135 (2) those courts that have declined to address the issue

directly or have concluded that McDonnell Douglas remains viable;136 (3) those





130. Winter v. Bank of Am., N.A., No. CIV. A.3:02-CV-1591-L, 2003 WL

23200278, at *3 (N.D. Tex. Dec. 12, 2003).

131. See discussion supra Part II.B-E. (discussing cases in which the Supreme Court

reversed lower court applications of the McDonnell Douglas standard).

132. See discussion infra Part V.

133. Desert Palace, Inc. v. Costa, 539 U.S. 90, 91 n.1 (2003).

134. See supra note 96.

135. See supra note 95.

136. See, e.g., DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004) (recognizing the

difference between direct and circumstantial evidence without even citing Costa); Love-Lane

v. Martin, 355 F.3d 766, 786-87 (4th Cir. 2004) (“To the extent that the Supreme Court’s

recent decision in Desert Palace, Inc. v. Costa might change the role that the McDonnell

Douglas burden-shifting framework plays in race discrimination cases, any change would not

prevent the entry of summary judgment against [the plaintiff] on her race discrimination

claims.”) (citations omitted); Kozlowski v. Hampton Sch. Bd., 77 Fed. Appx. 133, 138 (4th

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courts that have applied McDonnell Douglas and a mixed-motive analysis;137 (4)

those courts that opine that Costa’s interpretation of § 2000e-2(m) is a trial









Cir. 2003) (“In this case we are not asked to address—and do not address—whether Desert

Palace, a Title VII case, also applies to age discrimination cases under the ADEA.”); Allen v.

City of Pocahontas, 340 F.3d 551, 557-58 n.5 (8th Cir. 2003) (declining to address the issue of

whether the burden-shifting analysis of McDonnell Douglas had been altered by the Supreme

Court’s “refocus on the statutory language of the Civil Rights Act of 1991” and finding that

the petitioner had “provided no evidence direct or circumstantial, from which a reasonable

jury could logically infer that age or gender was a motivating factor in her termination”)

(citing Desert Palace, Inc. v. Costa, 539 U.S. at 95); Rowland v. Am. Gen. Fin., Inc., 340 F.3d

187, 192 n.4 (4th Cir. 2003) (declining to address the application of § 2000e-2(m) to single-

motive claims in light of the Supreme Court’s refusal to do so); Trammel v. Simmons First

Bank of Searcy, 345 F.3d 611, 615 (8th Cir. 2003) (assuming without deciding that Costa

applied to ADEA claims, the court found insufficient evidence demonstrating that petitioner’s

age was a motivating factor in his termination); Winter v. Bank of Am., N.A., No. CIV.

A.3:02-CV-1591-L, 2003 WL 23200278, at *3 (N.D. Tex. Dec. 12, 2003) (“The court

declines to accept [the plaintiff’s] suggestion that the McDonnell Douglas burden-shifting

paradigm no longer exists after Desert Palace.”); Vogan v. US Oncology, Inc., No. 02-4207-

CV-C-NKL, 2003 WL 23200384, at *4 (W.D. Mo. Oct. 30, 2003) (“While this Court

seriously questions the continued viability of the McDonnell Douglas burden-shifting

paradigm, it will use it to analyze this case because the outcome would be the same whether it

is used or not used at the summary judgment stage.”); Bolander v. BP Oil Co., No.

3:02CV7341, 2003 WL 22060351, at *3 (N.D. Ohio Aug. 6, 2003) (“The mixed motives

rationale and Desert Palace do not apply to age discrimination cases.”); Gover v. Speedway

Super Am., LLC, 284 F. Supp. 2d 858, 865 n.1 (S.D. Ohio 2003) (“Plaintiff has not asserted

that this is a mixed-motive case, nor is this litigation at the jury instruction stage. Moreover,

this Court has not required Plaintiff to present direct evidence in order to avoid summary

judgment. Accordingly, Desert Palace, is inapposite.”); Davis v. Emery Worldwide Corp.,

267 F. Supp. 2d 109, 120 n.2 (D. Me. 2003) (“Because no possibility of a mixed motive . . . is

raised by the evidence in the summary judgment record, the recent decision of the Supreme

Court in Desert Palace, Inc. v. Costa does not apply.”) (citation omitted).

137. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th

Cir. 2004) (applying McDonnell Douglas and a mixed-motive analysis); Hillstrom v. Best W.

TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003) (“[E]ven assuming the issue were preserved, it

would make no difference here: even in mixed-motive cases, plaintiffs must present enough

evidence to permit a finding that there was differential treatment in an employment action and

that the adverse employment decision was caused at least in part by a forbidden type of bias.

Hillstrom’s evidence does not meet that test.”); Estades-Negroni v. Assoc. Corp. of N. Am.,

345 F.3d 25, 30-32 (1st Cir. 2003) (same); Bethel v. Porterfield, 293 F. Supp. 2d 1307, 1320

(S.D. Ga. 2003) (“Although Plaintiff herein does not clearly articulate whether she is seeking

relief under a pretext or mixed-motive claim, out of caution I will address both.”); Woodman

v. WWOR-TV, Inc., 293 F. Supp. 2d 381, 389 (S.D.N.Y. 2003) (noting that the Second

Circuit has previously followed the rule in Costa, but noting that plaintiff failed to meet her

burden under a mixed-motive analysis); Thompson v. Proviso Township High Sch. Dist. 209,

No. 01 C 5743, 2003 WL 21638808, at *8 (N.D. Ill. July 10, 2003) (denying summary

judgment based on circumstantial evidence in light of Costa).

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issue;138 and (5) those courts holding that, under the proper circumstances,

McDonnell Douglas must be modified at the pretext stage to provide the

employee an alternative method to avoid summary judgment.139 Below we





138. See EEOC v. Minn. Beef Indus., Inc., No. CIV. 02-810DSDSRN, 2003 WL

22956445, at *3 n.2 (D. Minn. Dec. 11, 2003) (stating that Costa did not change the “analysis

at the summary judgment stage”). According to Judge David S. Doty:

The McDonnell Douglas standard serves to balance “employee rights and employer

prerogatives” under Title VII and to recognize employers’ “legitimate, non-

discriminatory” bases for employment decisions. Price Waterhouse, 490 U.S. at 243

(citing McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 248). It enables

courts to determine whether a plaintiff’s claim raises a material fact question of

impermissible bias in light of the defendant’s proffered non-discriminatory reason

for its actions. The shifting burdens analysis is not for juries to apply at trial. See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993); Desert Palace, 299 F.3d at

856.

Conversely, the Price Waterhouse analysis arises during and after trial. See Price

Waterhouse, 490 U.S. at 279 (O’Connor, J., concurring); Desert Palace, 299 F.3d at

856-57. Previously, if the court found that direct evidence of discrimination had

been presented during trial, the “mixed-motive” instruction was appropriate. See

Price Waterhouse, 490 U.S. at 270-71 (O’Connor, J., concurring). Since Desert

Palace, district courts may now give jurors the “mixed-motive” instruction when a

plaintiff presents only circumstantial evidence of discrimination at trial. See Desert

Palace, 123 S. Ct. at 2155. Nonetheless, on a defendant’s motion for summary

judgment, the court must still determine whether a plaintiff has made the necessary

prima facie showing and, if so, whether the claim raises a material question in light

of the defendant’s proffered justification. See Hicks, 509 U.S. at 510 n.3; Hossaini v.

W. Mo. Med. Ctr., 97 F.3d 1085, 1088 (8th Cir. 1996) (to avoid summary judgment,

plaintiff must present evidence of prima facie claim and show existence of material

fact question as to pretext). In that case, plaintiff is permitted to proceed to trial and

present all admissible evidence of discrimination, whether direct or circumstantial.

The jury will then decide the ultimate issue of whether plaintiff has proven by a

preponderance of the evidence that defendant discriminated against her because of

her gender. See 42 U.S.C. § 2000e-2(a) & (m).

Id.

139. See, e.g., Lloyd v. City of Bethlehem, No. Civ.A. 02-CV-00830, 2004 WL

540452, at *5 (E.D. Pa. Mar. 3, 2004) (“[W]e find persuasive the comprehensive analysis and

reasoning of the district court in Dunbar. Thus, we apply the modified McDonnell Douglas

test enunciated in Dunbar . . . .”); Ordahl v. Forward Tech. Indus., Inc., No. CIV.02-1014

JRT/FLN, 2004 WL 213189, at *3 (D. Minn. Feb. 4, 2004) (“[T]his Court believes that Desert

Palace necessitates modifying the third step of the McDonnell Douglas framework ‘so that it

is framed in terms of whether the plaintiff can meet his or her ultimate burden to prove

intentional discrimination, rather than in terms of whether the plaintiff can prove pretext.’”)

(quoting Brown v. Westaff (USA), Inc., No. CIV. 02-1696 JRTJSM, 2004 WL 67654, at *4-5

(D. Minn. Jan. 12, 2004)); Torlowei v. Target, No. CIV. 02-933 (MJD/JGL), 2004 WL

229081, at *4 (D. Minn. Feb. 3, 2004) (“Even if the employer’s non-discriminatory reason is

true—it is not pretext—the employee’s claim can survive if he has presented sufficient

evidence to raise a genuine issue of material fact as to whether his protected characteristic

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discuss why the cases supporting abrogation are incorrect and the case that has

best analyzed Costa.



A. Dare v. Wal-Mart Stores, Inc.:140 The Unauthorized Consequence of Costa



The first court to address Costa’s impact on McDonnell Douglas was the

United States District Court for the District of Minnesota, the Honorable Judge

Magnuson, Senior Judge.141 On June 13, 2003, Judge Magnuson issued a trilogy

of opinions142 that, according to Judge Magnuson, euthanized McDonnell

Douglas.143





was, at least, a motivating factor in the employer’s decision.”) (citing Dunbar v. Pepsi-Cola

Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1198-99 (N.D. Iowa 2003)); Walker v.

Northwest Airlines, Inc., No. CIV. 00-2604 (MJD/JGL), 2004 WL 114977, at *5 (D. Minn.

Jan 14, 2004) (same); Brown v. Westaff (USA), Inc., 2004 WL 67654, at *5 (D. Minn. Jan.

12, 2004) (“The third McDonnell Douglas step must . . . be modified ‘so that it is framed in

terms of whether the plaintiff can meet his or her ultimate burden to prove intentional

discrimination, rather then in terms of whether the plaintiff can prove pretext.’”) (quoting

Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d at 1196); Rishel v.

Nationwide Mut. Ins. Co., 297 F. Supp. 2d 854, 865 (M.D.N.C. 2003) (“[T]he Court must

only modify the final stage of the McDonnell Douglas scheme to accommodate Desert

Palace, by framing the final stage ‘in terms of whether the plaintiff can meet his or her

“ultimate burden” to prove intentional discrimination, rather than in terms of whether the

plaintiff can prove “pretext”’”) (quoting Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285

F. Supp. 2d at 1197); Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d at

1197 (“[T]he McDonnell Douglas burden-shifting paradigm must only be modified in light of

Desert Palace, § 2000e-2(m), and only in its final stage, so that it is framed in terms of

whether the plaintiff can meet his or her ‘ultimate burden’ to prove intentional discrimination,

rather than in terms of whether the plaintiff can prove ‘pretext.’”).

140. Dare v. Wal-Mart Stores, Inc. (Dare II), 267 F. Supp. 2d 987 (D. Minn. 2003).

Jason Hedican represented the defendant in Dare II. Id. at 988.

141. Id.

142. Gonzalez v. City of Minneapolis, 267 F. Supp. 2d 1004 (D. Minn. 2003);

Skomsky v. Speedway SuperAmerica., L.L.C., 267 F. Supp. 2d 995 (D. Minn. 2003); Dare II,

267 F. Supp. 2d 987. Because Dare II is the most frequently cited opinion, we address its

analysis only.

143. See Dare II, 267 F. Supp. 2d at 994.

The unambiguous language of the Civil Rights Act of 1991 directly conflicts with the

practice of following the direct/indirect evidence distinction to determine whether to

evaluate a discrimination claim under the McDonnell Douglas burden-shifting

paradigm or the allocations of burdens set forth in the Civil Rights Act of 1991. In

addition, the plain meaning of the Civil Rights Act of 1991, the false dichotomy

produced by the McDonnell Douglas framework, the fact that when a defendant

prevails under the McDonnell Douglas paradigm the Court is left with a classic

mixed-motive scenario, and the usefulness of the same decision test all support this

Court’s decision to apply the Civil Rights Act of 1991 to single-motive claims.

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Plaintiff Lois Dare alleged that Wal-Mart discriminated against her on the

basis of race when it failed to hire her at two of its stores.144 After disposing of

some of her claims,145 Judge Magnuson concluded that Ms. Dare raised a

question of fact as to her prima facie case with respect to one of the stores.146

Because Ms. Dare lacked direct evidence of discriminatory motive, the court

indicated that it would normally apply McDonnell Douglas,147 but it stayed its

ruling pending the outcome in Costa, reasoning:



The court anticipates that, in the face of the plain language of the Civil

Rights Act of 1991, the Supreme Court will limit the effect of or do away

with entirely the single/mixed-motive distinction and the direct/indirect

evidence distinction. Therefore, the Court stays Wal-Mart’s Motion pending

the outcome of Costa.148



1. The Dare II Decision and Its Rationale

Four days after the Supreme Court decided Costa, Judge Magnuson ruled

on the stayed portions of Wal-Mart’s motion.149 Without requesting or

considering arguments from the parties,150 the court held that the 1991 Act

applied to single-motive cases.151 By implication, Judge Magnuson purported to

overturn the Supreme Court’s 1973 decision in McDonnell Douglas152 based on





Id.; Gonzalez v. City of Minneapolis, 267 F. Supp. 2d at 1010 (“Pursuant to the Supreme

Court’s decision in Desert Palace, the case must be analyzed according to the provisions of 42

U.S.C. § 2000e-2(m) and § 2000e-5(g)(2)(B).”); Skomsky v. Speedway SuperAmerica.,

L.L.C., 267 F. Supp. 2d at 1000 (same).

144. Dare v. Wal-Mart Stores, Inc. (Dare I), No. CIV. 02-0001 (PAMRLE), 2003

WL 21147657, at *2 (D. Minn. May 8, 2003).

145. See id. at *3 (holding that the Title VII claims against one store were barred

because they were not included in the EEOC charge).

146. Id. at *4.

147. Id. at *9.

148. Id.

149. Dare II, 267 F. Supp. 2d 987, 993-94 (D. Minn. 2003).

150. Defendant’s counsel had no opportunity to submit any of the analysis contained

in this Article to the court and was given no subsequent opportunity to do so.

151. Id. at 991.

152. Id. at 990-91. While some interpreted Judge Magnuson’s Dare II decision as

the death of McDonnell Douglas, see, e.g., Van Detta, supra note 2, at 141-42 & n.344, Judge

Magnuson, in subsequent opinions, left no doubt that McDonnell Douglas, in his opinion, was

dead. For example, in Veeder v. Cargill, Inc., the court identified its perception as to the

appropriate analysis applicable to plaintiff’s claims for gender discrimination and retaliation

under Title VII. Veeder v. Cargill, Inc., No. 02-1711 PAM/RLE, 2003 WL 23018824, at *6

(D. Minn. Dec. 23, 2003) (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 94-96 (2003); Dare

II, 267 F. Supp. 2d at 992). Judge Magnuson reiterated his previous holding that “[p]ursuant

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the

four factors: (1) 1991 Act is unambiguous and not expressly limited to

153

mixed-motive cases; (2) “the interests of clarity and accuracy support”

allowing “plaintiffs to bring single-motive claims according to the allocations of

154

Act;

burdens articulated in” the 1991 (3) “evaluating single-motive claims

under the McDonnell Douglas burden-shifting scheme inevitably and

155

and

paradoxically leads to a classic mixed-motive scenario”; (4)“the process

dictated by the Civil Rights Act of 1991 is more useful than the analysis required

by McDonnell Douglas.”156

Because the court determined that Ms. Dare had at least raised genuine

issues of material fact as to her prima facie case, it essentially concluded that Ms.

Dare similarly established a genuine issue as to whether her race was a

motivating factor in her non-hire.157 Therefore, the court afforded Wal-Mart the

“opportunity to file a motion for summary judgment on its affirmative defense to

damages according to 42 U.S.C. § 2000e-5(g)(2)(B).”158 Judge Magnuson has

not deviated from this analysis since Dare II.159



2. Dare II’s Analytical Flaws

Dare II represents the most extreme interpretation of Costa. As discussed





to the U.S. Supreme Court’s ruling in Desert Palace, Inc. v. Costa, the burden-shifting pretext

analysis of McDonnell Douglas Corporation v. Green does not apply.” Id. (citing Desert

Palace, Inc. v. Costa, 539 U.S. at 90-96; Dare II, 267 F. Supp. 2d at 987-94). Thereafter,

Judge Magnuson identified his view of the proper test: “To proceed with these claims, Veeder

must set forth facts establishing prima facie cases of gender and retaliation. The burden then

shifts to Cargill to prove that it would have made the same decision regardless of the improper

motive.” Id. (citing Desert Palace, Inc. v. Costa, 539 U.S. at 94-96; Dare II, 267 F. Supp. 2d

at 992); see also Picha v. CCS Enters., LLC, No. CIV. 02-3826(PAM/RLE), 2004 WL

212866, at *2 (D. Minn. Jan. 30, 2004) (“[T]o avoid summary judgment, Picha must raise a

genuine issue of material fact as to the elements of a prima facie case of disability

discrimination.”).

153. Dare II, 267 F. Supp. 2d at 990-91.

154. Id. at 991.

155. Id.

156. Id.

157. See id. at 993 (holding that questions of fact regarding each element of Dare’s

prima facie case precluded summary judgment on her Title VII claim).

158. Id.

159. See, e.g., Picha v. CCS Enters., LLC, No. CIV. 02-3826(PAM/RLE), 2004 WL

212866, at *2 (D. Minn. Jan. 30, 2004) (stating that Desert Palace eliminated the McDonnell

Douglas burden-shifting analysis); Veeder v. Cargill, Inc., No. CIV. 02-1711 PAM/RLE,

2003 WL 23018824, at *6 (D. Minn. Dec. 23, 2003) (same); Jackson v. Catholic Charities,

No. CIV. 02-122PAMRLE, 2003 WL 22533330, at *2 & n.1 (D. Minn. Nov. 3, 2003) (stating

that Desert Palace applies to single-motive cases and that McDonnell Douglas is not good

law).

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above, Costa did not overrule McDonnell Douglas, and Judge Magnuson in Dare

II erred in concluding so. Dare II’s fundamental flaw is its conclusion that the

establishment of a prima facie case meets the plaintiff’s ultimate burden to prove

intentional discrimination, thereby converting the case into a mixed-motive case

under § 2000e-2(m).160 This approach is flawed for several reasons. First, as





160. See Dare II, 267 F. Supp. 2d at 991-92. Specifically, the court reasoned as

follows:

Under McDonnell Douglas, and assuming that a plaintiff establishes a prima facie

case, or at least creates questions of fact on each of the elements of that prima facie

case, the defendant then must present a legitimate, nondiscriminatory reason for the

employment action. In a single-motive case, the dichotomy is complete: either the

plaintiff is correct in alleging that an illegitimate factor alone motivated the

defendant or the defendant’s legitimate nondiscriminatory reason was the only

reason for the decision. The Court must decide which factor was the sole basis for

the employment decision. To do so, McDonnell Douglas requires that the plaintiff

challenge the defendant’s proffered reason. A plaintiff must show that the proffered

reason is false, and that it is a pretext for the discriminatory motive proposed by the

plaintiff. In considering the parties’ mutually exclusive reasons for the employment

decision, only two scenarios are possible: either defendant’s proffered reason is (a)

true and valid; or it is (b) false and invalid. Under the second scenario, the plaintiff

would prevail. However, under scenario “(a),” McDonnell Douglas would result in a

victory for the defendant. The Court is concerned that the analysis in scenario “(a)”

is incomplete, illogical, and prohibited by the Civil Rights Act of 1991.



The dichotomy produced by the McDonnell Douglas framework is a false one. In

practice, few employment decisions are made solely on basis of one rationale to the

exclusion of all others. Instead, most employment decisions are the result of the

interaction of various factors, legitimate and at times illegitimate, objective and

subjective, rational and irrational. The Court does not see the efficacy in

perpetuating this legal fiction implicitly exposed by the Supreme Court’s ruling in

Desert Palace. When possible, this Court seeks to avoid those machinations of

jurisprudence that do not comport with common sense and basic understandings of

human interaction.



Even putting the concerns of reality aside, however, a plaintiff’s unsuccessful

challenge to the defendant’s non-discriminatory rationale should not automatically

allow the defendant to escape liability. Instead, it should merely subject the

defendant to the mixed-motive analysis dictated by the Civil Rights Act of 1991.

The pretext phase of the McDonnell Douglas scheme sets one allegedly illegitimate

rationale against a second, allegedly legitimate reason for the employment action.

However, a defendant could have illegitimately considered a plaintiff’s race, gender,

or other enumerated classification in making its employment decision and, at the

same time, legitimately considered other factors, one of which it proffered to the

court in satisfaction of its productive burden. Similarly, a plaintiff can fail to prove

that the defendant’s proffered reason is false without automatically or necessarily

failing to prove that another motivating factor was illegitimate. In other words, when

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discussed above, under McDonnell Douglas, as in all civil actions, “[t]he ultimate

burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.”161 The

Supreme Court has repeatedly rejected any effort to impose upon the employer

the obligation to prove by a preponderance of the evidence that it did not

discriminate in the face of nothing more than the rebutted prima facie case.162

Dare II misread the legal effect of the presumption by concluding that the

establishment of the prima facie case requires, even if rebutted, the trier of fact to

find intentional discrimination.163 Accordingly, Dare II concluded that every

discrimination case is a mixed-motive case.164 But, contrary to Dare II’s

rationale, the Supreme Court has expressly recognized that the employer may

rebut the prima facie case:



The phrase “prima facie case” not only may denote the establishment of a

legally mandatory, rebuttable presumption, but also may be used by courts

to describe the plaintiff’s burden of producing enough evidence to permit the

trier of fact to infer the fact at issue. McDonnell Douglas should have made

it apparent that in the Title VII context we use “prima facie case” in the

former sense.165





a defendant prevails under the McDonnell Douglas scheme, the court is left with a

classic mixed-motive scenario, in which both alleged motives could have factored

into the defendant’s ultimate employment decision. This is clearly impermissible

under the Civil Rights Act of 1991, which holds an employer liable for considering a

discriminatory motive, even when other legitimate and sufficient motives were also

considered.

Id. (citation omitted).

161. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

162. See discussion supra Part II.B-E.

163. See supra note 160 and accompanying text.

164. Dare II, 267 F. Supp. 2d at 991.

165. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 254 n.7 (citation omitted).

In addition, the Court in St. Mary’s Honor Center v. Hicks stated:

We have no authority to impose liability upon an employer for alleged

discriminatory employment practices unless an appropriate factfinder determines,

according to proper procedures, that the employer has unlawfully discriminated. We

may, according to traditional practice, establish certain modes and orders of proof,

including an initial rebuttable presumption of the sort we described earlier in this

opinion, which we believe McDonnell Douglas represents. But nothing in law would

permit us to substitute for the required finding that the employer’s action was the

product of unlawful discrimination, the much different (and much lesser) finding that

the employer’s explanation of its action was not believable. The dissent’s position

amounts to precisely this, unless what is required to establish the McDonnell

Douglas prima facie case is a degree of proof so high that it would, in the absence of

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A rebutted prima facie case cannot demonstrate that an illegal criterion

motivated the adverse employment action at issue. Several courts have

recognized, unlike Dare II, that following Costa, a rebutted prima facie case

remains insufficient to prove discrimination or shift the burden of proof to the

employer.166

Second, it bears repeating from the discussion above that § 2000e-2(m)

only shifts the burden to the employer to prove by a preponderance of the

evidence that it would have reached the same result if the plaintiff first proves

discrimination, not just states a prima facie case.167 Accordingly, the declaration

that Costa means the burden shifts to the employer to disprove discrimination

because the plaintiff made a prima facie case but does not prove discrimination

misstates the statute and three decades of law.168

What is more, Dare II improperly creates a proof mechanism by selecting

the parts of McDonnell Douglas it likes and rejecting those it does not. While

“[t]he burden of establishing a prima facie case” was never intended to be

onerous,169 the employer’s burden to rebut is not taxing either.170 Accordingly,





rebuttal, require a directed verdict for the plaintiff (for in that case proving the

employer’s rebuttal noncredible would leave the plaintiff’s directed-verdict case in

place, and compel judgment in his favor). Quite obviously, however, what is

required to establish the McDonnell Douglas prima facie case is infinitely less than

what a directed verdict demands.

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 514-15 (1993).

166. See, e.g., Overall v. Univ. of Penn., No. CIV.A. 02-1628, 2003 WL 23095953,

at *6 (E.D. Pa. Dec. 19, 2003) (‘“To obtain the benefits under a mixed motive theory, the

employee must ‘offer stronger evidence . . . than that needed to establish a prima facie case

under McDonnell Douglas.’”) (quoting Campetti v. Career Educ. Corp., No. CIV.A. 02-CV-

1349, 2003 WL 21961438, at *7 (E.D. Pa. June 25, 2003)).

167. See supra note 106 and accompanying text.

168. Id.

169. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 253; Calero-Cerezo v. U.S.

Dep’t of Justice, 355 F.3d 6, 26 (1st Cir. 2004) (citation omitted); Putman v. Unity Health

Sys., 348 F.3d 732, 735 (8th Cir. 2003) (citation omitted); Abbott v. Crown Motor Co., 348

F.3d 537, 542 (6th Cir. 2003) (citations omitted); Manning v. Chevron Chem. Co., 332 F.3d

874, 883 n.6 (5th Cir. 2003) (citations omitted); Hall v. Ala. Ass’n of Sch. Bds., 326 F.3d

1157, 1166 (11th Cir. 2003) (citation omitted); Foster v. AlliedSignal, Inc., 293 F.3d 1187,

1193 & n.3 (10th Cir. 2002) (citation omitted); Forman v. Small, 271 F.3d 285, 292 (D.C. Cir.

2001) (citation omitted); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir.

2001) (citations omitted); Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 646

(3d Cir. 1998) (citations omitted); Runnebaum v. NationsBank of Md., N.A., 95 F.3d 1285,

1290 (4th Cir. 1996) (citation omitted); Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538,

542 (7th Cir. 1987) (citation omitted); see Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.

2002) (“At the summary judgment stage, the ‘requisite degree of proof necessary to establish

a prima facie case . . . is minimal and does not even need to rise to the level of a

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Dare II distorts McDonnell Douglas to enable plaintiffs to prove discrimination

in virtually any circumstance.171

In short, if Costa overruled McDonnell Douglas, then it must have done so

in its entirety, and Dare II should not have taken the very light prima facie

burden from M c D o n n e l l D o u g l a s and ruled that it alone proves

discrimination—especially in the absence of express direction from the Supreme

Court. Consequently, Dare II erred by improperly weighting the prima facie

case, rather than evaluating the case in terms of the plaintiff’s ultimate burden in

a discrimination case, as the Supreme Court has repeatedly mandated.172

One final flaw of Dare II’s analysis requires comment. The court

suggested that its interpretation was necessary because, otherwise, a plaintiff may

not be able to prove his or her case.173 However, this concern does not justify the

creation of a legally unsupported change to the traditional analysis, because this

concern exists in all civil actions. As the Supreme Court has previously noted:



All courts have recognized that the question facing triers of fact in

discrimination cases is both sensitive and difficult. The prohibitions against

discrimination contained in the Civil Rights Act of 1964 reflect an important

national policy. There will seldom be “eyewitness” testimony as to the

employer’s mental processes. But none of this means that trial courts or

reviewing courts should treat discrimination differently from other ultimate

questions of fact. Nor should they make their inquiry even more difficult by

applying legal rules which were devised to govern “the basic allocation of

burdens and order of presentation of proof[]” in deciding this ultimate

question.174







preponderance of the evidence.’”) (citation omitted) (alteration in original).

170. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)

(noting that the defendant’s “burden is one of production, not persuasion; it ‘can involve no

credibility assessment’”) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993));

see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (stating that establishment

of a prima facie case “raises an inference of discrimination only because we presume these

acts, if otherwise unexplained, are more likely than not based on the consideration of

impermissible factors”).

171. Dare II, 267 F. Supp. 2d 987, 991-92 (D. Minn. 2003).

172. See, e.g., U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 717

(1983) (“The District Court . . . erroneously focused on the question of prima facie case rather

than directly on the question of discrimination.”).

173. See Dare II, 267 F. Supp. 2d at 992 (stating that “a plaintiff’s unsuccessful

challenge to the defendant’s non-discriminatory rationale should not automatically allow the

defendant to escape liability”).

174. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 716 (citation

omitted).

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Based on the provisions of Title VII and the opinions of the Supreme

Court, Dare II cannot stand. Notwithstanding Judge Magnuson’s concerns to the

contrary, we, like the Supreme Court, remain confident in McDonnell Douglas’s

ability to vindicate victims of discrimination.175



B. Dunbar v. Pepsi-Cola General Bottlers of Iowa, Inc:176 A More, But Not

Completely, Accurate Approach



While some commentators,177 and at least one court,178 have expressly

endorsed Dare II, the vast majority of courts (including the Eighth Circuit Court

of Appeals in which Judge Magnuson’s court sits)179 have either rejected the idea





175. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981) (“We

remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief

to demonstrate intentional discrimination.”). For several years, Chris Hedican represented

plaintiffs in employment litigation. He never found McDonnell Douglas to present the proof

problems or other difficulties Dare II and commentators have claimed. Indeed, he found

establishing a fact question on pretext to be relatively easy. He does agree with those

commentators who decry the lack of competent representation of plaintiffs, because he found

that diligent discovery, creativity, and knowledge of the law enabled him to build cases in a

way he rarely sees from plaintiff’s counsel. The only significant problem he encountered was

judges who made fact determinations at summary judgment. However, in that instance, this

problem could be resolved at the appellate court level by arguing that numerous facts in

addition to pretext demonstrated a fact issue for trial. See, e.g., Widoe v. Dist. # 111 Otoe

County Sch., 147 F.3d 726, 732 (8th Cir. 1998) (finding that evidence of pretext and age bias

established a fact question precluding summary judgment).

176. Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180 (N.D.

Iowa 2003).

177. See, e.g., Van Detta, supra note 2, at 139-42 (endorsing the Dare II approach);

see also Corbett, supra note 2, at 215 (discussing Dare II).

178. Griffith v. City of Des Moines, No. 4:01-CV-01537, 2003 WL 21976027, at

*12 (S.D. Iowa July 3, 2003) (citing Dare II, 267 F. Supp. 2d at 991). Despite this purported

agreement, Judge Longstaff granted summary judgment on the plaintiff’s Title VII claims,

concluding that the result would have been the same under McDonnell Douglas, because the

plaintiff had not established that the defendant’s legitimate, nondiscriminatory reasons were a

pretext. Id. at *17 n.18; see also Thomas v. Chrysler Fin., LLC, 278 F. Supp. 2d 922, 926

(N.D. Ill. 2003) (“It would seem to follow that if an employee can raise an inference of

discrimination by satisfying the initial elements of a prima facie case, an employer may not

necessarily escape liability altogether by offering an alternative explanation for its action.

Once the potential exists for the alleged discriminatory motive to be viewed reasonably as a

motivating factor at all, the employer’s proffer of a legitimate, nondiscriminatory justification

would arguably affect the scope of remedies available to the plaintiff, but not the employer’s

underlying liability (42 U.S.C. § 2000e-5(g)(2)(B)).”).

179. The Eighth Circuit Court of Appeals, which encompasses the United States

District Court for the District of Minnesota, has not directly addressed the issue; however, its

decisions reveal that Dare II’s approach is, at a minimum, inconsistent with Eighth Circuit

precedent. See Allen v. City of Pocahontas, 340 F.3d 551, 557 n.5 (8th Cir. 2003) (“Without

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of eliminating McDonnell Douglas, or have simply continued to apply

McDonnell Douglas either by itself or in conjunction with a mixed-motive

analysis.180 Those courts expressly addressing the issue have noted that the Costa

decision may, under appropriate circumstances, require a modification of the

pretext stage of the McDonnell Douglas analysis.181 However, a careful review

of this approach reveals that, in essence, these courts are merely articulating

previous observations made by the Supreme Court with respect to McDonnell

Douglas.182 As such, these cases also demonstrate McDonnell Douglas’ s

continued viability.

The best approach in this regard came from the United States District Court

for the Northern District of Iowa. In Dunbar v. Pepsi-Cola General Bottlers of

Iowa, Inc., Judge Mark W. Bennett183 made a commendable effort to reconcile







reaching the issue as to whether the Supreme Court’s refocus on the statutory language of the

Civil Rights Act of 1991 alters the burden-shifting analysis of McDonnell Douglas, the result

in this case remains the same. Here, petitioner has provided no evidence, direct or

circumstantial, from which a reasonable jury could logically infer that age or gender was a

motivating factor in her termination.”) (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 95-96

(2003)); see also Preutt v. Vill. News, Inc., No. 03-1798EA, 2003 WL 22833376, at *1 n.2

(8th Cir. Dec. 1, 2003) (declining to address Costa’s application to summary judgment

because the issue was not properly raised before the courts). Subsequently, the Eighth Circuit

implicitly overruled Dare. In Trammel v. Simmons First Bank, the Eighth Circuit observed

that the defendant “d[id] not dispute that Mr. Trammel met his burden of establishing a prima

facie case.” Trammel v. Simmons First Bank, 345 F.3d 611, 614 (8th Cir. 2003). Despite this

concession, which, according to Judge Magnuson, triggered a mixed-motive analysis, the

Eighth Circuit affirmed summary judgment for the employer because the plaintiff failed to

meet his ultimate burden of proof. Id. at 616. The court explained that “even if we assume,

without deciding, that the holding in Costa applies to ADEA claims, we do not believe that

this helps Mr. Trammel because he has presented insufficient evidence to support a finding

that his age was a ‘motivating factor’ in the decision to discharge him.” Id. at 615. Moreover,

in Marquez v. Bridgestone/Firestone, Inc., the Eighth Circuit affirmed summary judgment for

the employer, holding that in the absence of direct evidence of discrimination, McDonnell

Douglas was the proper standard to apply. Marquez v. Bridgestone/Firestone, Inc., 353 F.3d

1037, 1038 (8th Cir. 2004). This analysis directly contradicts Judge Magnuson’s approach in

Dare I, in which he made an express finding that there was no direct evidence, but still denied

summary judgment on this finding alone. See Dare I, No. CIV. 02-0001 (PAMLRE), 2003

WL 21147657, at *9 (D. Minn. May 8, 2003) (staying Wal-Mart’s motion for summary

judgment to await the Supreme Court’s decision in Costa even though there was no direct

evidence).

180. See supra notes 136-37.

181. See supra note 137.

182. See supra notes 16-71 and accompanying text.

183. See generally BIOGRAPHICAL D IRECTORY OF THE F EDERAL JUDICIARY 1789-

2000, at 374 (Bernan 2001). It is worth noting that Judge Bennett was a reputed and

accomplished plaintiffs’ employment litigator prior to joining the bench.

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Costa with McDonnell Douglas in the context of summary judgment.184 Initially,

Judge Bennett concluded that in light of the 1991 Act, “Congress has made plain

that an employment practice ‘because of’ a protected characteristic means that

the protected characteristic was ‘a motivating factor’ for that employment

practice, not that it was the sole motivating factor.”185 Judge Bennett determined

that Costa adopted the same standard required to avoid summary

judgment—whether a reasonable jury could conclude by a preponderance of the

evidence that an illegal criterion motivated an unlawful employment practice.186

While Judge Bennett shared Judge Magnuson’s belief “that Desert Palace and §

2000e-2(m) spell the demise of the ‘false dichotomy’ between” McDonnell

Douglas and Price Waterhouse, and might “spell the demise of the Price

Waterhouse framework,” Judge Bennett did not believe it signaled the demise of

McDonnell Douglas.187 Rather, he concluded that McDonnell Douglas was not

the flaw.188 Instead, the flaw was the conclusion drawn by some courts that “in

the absence of ‘direct evidence’ of discrimination there could be no ‘mixed-

motive’ case.”189

From these observations, Judge Bennett concluded that once the

McDonnell Douglas presumption disappears, more than two possibilities exist.190





184. Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1195-

96 (N.D. Iowa 2003).

185. Id. at 1195.

186. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

187. Id. at 1196.

188. Id.; see also Higareda v. Ford Motor Co., No. 01-1182-CV-W-HFS, 2003 WL

22110496, at *4 n.9 (W.D. Mo. Sept. 2, 2003) (declining to rely on the Supreme Court’s

Costa ruling in addressing summary judgment, but accepting “the criticism that some case law

may overemphasize McDonnell Douglas analysis”).

189. Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d at 1196.

Judge Bennett also observed that, before Costa, “the Supreme Court made clear that, after the

defendant offers a legitimate reason for its conduct, ‘the McDonnell Douglas

framework—with its presumptions and burdens—disappear[s], and the sole remaining issue

[i]s discrimination vel non.’” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 142-43 (2000)); see also Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d

277, 286 (4th Cir. 2004) (“Regardless of the type of evidence offered by a plaintiff as support

for her discrimination claim (direct, circumstantial, or evidence of pretext), or whether she

proceeds under a mixed-motive or single-motive theory, ‘[t]he ultimate question in every

employment discrimination case involving a claim of disparate treatment is whether the

plaintiff was the victim of intentional discrimination.’”) (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. at 153).

190. Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d at 1197.

Specifically, Judge Bennett noted:



[I]f the defendant’s proffered reason is true, there are three possible scenarios, which

might be described as the “mixed motive” scenarios:

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Therefore, he concluded that, in light of Costa, if the employee establishes a

prima facie case, and the employer proffers a legitimate, nondiscriminatory

reason, the McDonnell Douglas analysis need only be modified at its final stage

“in terms of whether the plaintiff can meet his or her ‘ultimate burden’ to prove

intentional discrimination, rather than in terms of whether the plaintiff can prove









(1) The defendant’s proffered reason is true, and it is the only reason (or, at

least, the only reason supported by the record). No “mixed motive” is shown,

and the defendant wins.

(2) The defendant’s reason is true, there are other reasons supported by the

record, but the plaintiff nevertheless fails to prove by the preponderance of

the evidence (or to generate a genuine issue of material fact) that another

“motivating factor” for the defendant’s conduct was the employee’s protected

characteristic. No adequate “mixed motive” showing has been made, and the

defendant wins.

(3) The defendant’s reason is true, there are other reasons supported by the

record, and the plaintiff proves by the preponderance of the evidence (or

generates a genuine issue of material fact) that another “motivating factor” for

the defendant’s conduct was the employee’s protected characteristic. An

adequate “mixed motive” showing has been made, and the plaintiff wins (or at

least defeats the defendant’s motion for summary judgment).



Similarly, if the defendant’s proffered reason is false, the plaintiff must still make a

showing that the plaintiff’s protected characteristic is the “real reason,” i.e., a

showing of “pretext,” with the following possible scenarios:

(1) The defendant’s proffered reason is false, but no other reason is supported

by the record (which implies that the “real reason” was the employer’s right

to fire an at-will employee for no reason). “Pretext” has not been shown, and

the defendant wins.

(2) The defendant’s proffered reason is false, there are other reasons

supported by the record, but the plaintiff nevertheless fails to prove by the

preponderance of the evidence (or to generate a genuine issue of material

fact) that his or her protected characteristic was the real reason. “Pretext” has

not been shown, and the defendant wins.

(3) The defendant’s proffered reason is false, there are other reasons

supported by the record, and the plaintiff proves by the preponderance of the

evidence (or generates a genuine issue of material fact) that his or her

protected characteristic was the real reason. An adequate showing of

“pretext” has been made, and the plaintiff wins (or at least defeats the

defendant’s motion for summary judgment).



Only two of these possible scenarios result in victory for the plaintiff, or at least,

allow a plaintiff to defeat a defendant’s motion for summary judgment, because in

only those two scenarios has the plaintiff made an adequate showing on his or her

ultimate burden to prove intentional discrimination.

Id.

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‘pretext.’”191 Consequently, Judge Bennett determined that the modified

paradigm was as follows:



Under such a modified framework, to prevail after the defendant produces a

legitimate, nondiscriminatory reason for its conduct the plaintiff must prove

by the preponderance of the evidence either (1) that the defendant’s reason is

not true, but is instead a pretext for discrimination (pretext alternative), see

Reeves, 530 U.S. at 143, 120 S. Ct. 2097; or (2) that the defendant’s reason,

while true, is only o n e of the reasons for its conduct, and another

“motivating factor” is the plaintiff’s protected characteristic (mixed-motive

alternative). 42 U.S.C. § 2000e-2(m). The latter showing may be made

with either “direct” or “circumstantial” evidence. Desert Palace, 539 U.S.

at [90], 123 S. Ct. 2155.192



Judge Bennett’s approach, marked by his typical thoroughness, represents

an admirable attempt to reconcile Costa with previous decisions of the Supreme

Court. His conclusion, while legally sound, does not represent a new conclusion

compelled by Costa or the 1991 Act. Instead, it is completely consistent with

McDonnell Douglas and its progeny as to a plaintiff’s available methods of

carrying his or her ultimate burden. As the Supreme Court has noted, a plaintiff

may establish his or her case “either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by

showing that the employer’s proffered explanation is unworthy of credence.”193

The analysis adopted by Dunbar and those following it is completely

supported by previous Supreme Court decisions. Consequently, it does not

signal a departure. In short, McDonnell Douglas and the traditional analysis

available to the courts for evaluating summary judgment remains the same. That

is, the methods of proof discussed above and illustrated in the Appendix to this

Article have been, and continue to be, available to the plaintiff.



VI. A BRIEF RESPONSE TO THE QUIET DEMISE OF MCDONNELL DOUGLAS



We have set forth our view that Costa in no way overruled McDonnell

Douglas and that those courts finding to the contrary are incorrect. Jeffrey A.

Van Detta, Associate Professor of Law and Associate Dean of Academic Affairs

at John Marshall Law School in Atlanta, Georgia, authored the most

comprehensive article to date, arguing that Costa indeed overruled McDonnell







191. Id. at 1197-98.

192. Id.

193. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973)).

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Douglas.194 Let us start by saying what we feel is positive about the article.

Professor Van Detta carefully synthesizes and weaves together three decades of

critical commentary on McDonnell Douglas. As a distillation of what

commentators have felt was wrong with McDonnell Douglas, the writing is

excellent. Professor Van Detta’s essay also is an illustration of the important role

that law schools and law reviews contribute to fostering the debate about what

our laws should and should not be in the United States. However, beyond this,

we disagree with him.

Professor Van Detta acknowledges that his “tone . . . is not a neutral one”

in his writing, and that is amply apparent.195 He essentially endorses the

approach Judge Magnuson adopted in Dare II—that once a plaintiff proves a

prima facie case of discrimination, he or she has met the ultimate burden of

proving discrimination. At that point, the employer could only prevail if it

persuaded the fact finder “either: (a) that the protected status was not a causative

factor at all (a complete defense), or (b) that the defendant would have made the

same decision anyway in the plaintiff's case, even if the plaintiff was not a

member of a protected class (a partial defense).”196 What Professor Van Detta

did that Dare II did not is provide a rationale as to why this should be the law.197

Professor Van Detta follows up with why he believes that the Civil Rights Act of

1991 and Costa demonstrate that McDonnell Douglas has been overruled.198

Below, we outline some of our concerns.

The central premise of Professor Van Detta’s argument is that McDonnell

Douglas and the courts have largely failed to accept that the United States is

permeated with unconscious discrimination and, in particular, racism.199 In

essence, he reasons that, because of the history of unconscious discrimination,







194. See generally Van Detta, supra note 2.

195. Id. at 79.

196. Id. at 77.

197. See id. at 108-19 (arguing that McDonnell Douglas is untenable due to the

phenomenon of unconscious racism).

198. See id. at 119-38 (arguing that the statutory language, legislative history, and

legislative purpose of the Civil Rights Act of 1991 and the Court’s holding in Costa have

overruled McDonnell Douglas).

199. Id. at 80, 109-110. Specifically, he reasons:



Title VII is merely a tort—whose key question is causation, rather than intent. And

the effect of establishing the prima facie case in the backdrop of “unconscious

racism”—and sexism, colorism, national originism, and antireligionism, which I

maintain follow naturally from our history of discrimination in those areas as

well—is that causation is established.

Id. at 99.

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once a plaintiff establishes a prima facie case of discrimination, it is fair to

presume intent.200 The theory, as Professor Van Detta stated, may appear

“radical,” but he contends it is not.201 We agree that issues of unconscious racism

are appropriate for debate, but there is nothing within Title VII or any of the

antidiscrimination statutes that brands all employers as bigots until they can

prove otherwise.202 The legislative history to the antidiscrimination statutes does

not appear to support this view or recognize such a congressional finding.203

Moreover, in over three decades of analysis of the antidiscrimination laws by the

Supreme Court, it has never found such an “unconscious intent” to underpin the

statutes or even constitute a target of the laws.204 Had it been there, certainly a

judge or two would have pointed it out. Instead, the Court has reached the

opposite conclusion, repeatedly holding that the burden of proof does not shift to

the employer to disprove discrimination once a plaintiff makes a prima facie

case.205

Professor Van Detta believes that Costa overruled McDonnell Douglas by

implication.206 We will not repeat the argument to the contrary here, but there are

a few additional points we want to make concerning Professor Van Detta’s view

of Costa. Professor Van Detta argues that the Supreme Court unwittingly and

irretrievably overruled McDonnell Douglas based on its interpretation of §

2000e-2(m) in Costa.207 In addition to the reasons we previously articulated, there





200. Id. at 115.

201. Id. at 118.

202. See, e.g., 42 U.S.C. § 2000e-2(m) (2000) (stating that the plaintiff must

demonstrate that the employer considered an illegitimate criterion to establish an unlawful

employment practice).

203. See Price Waterhouse v. Hopkins, 490 U.S. 228, 262 (1989) (“The legislative

history [of Title VII] makes it clear that Congress was attempting to eradicate discriminatory

actions in the employment setting, not mere discriminatory thoughts.”).

204. See discussion supra Part II. Indeed, in Price Waterhouse, the Court stated:

“‘There must be some specific external act, more than a mental act. Only if he does the act

because of the grounds stated in the bill would there be any legal consequences.’” Price

Waterhouse v. Hopkins, 490 U.S. at 262 (quoting 100 CONG. REC. 7254 (1964) (remarks of

Sen. Case)).

205. See discussion supra Part II.

206. Van Detta, supra note 2, at 73, 130-34.

207. Id. at 136. Professor Van Detta also argues that footnote one in Costa was a

lame attempt to narrow a holding that he believes cannot be narrowed. Id. He likens the

footnote to a hypothetical declaration in Brown v. Board of Education, 347 U.S. 483 (1954),

that the holding is limited to outlaw segregation in schools but expresses no opinion on

segregation by the government in any other context. Id. at 136 n.322. Although dramatic, the

analogy does not follow. Costa simply defined the nature of proof required to obtain a mixed-

motive instruction. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 95-96 (2003) (holding that

“direct evidence of discrimination is not required in mixed-motive cases”; the “plaintiff need

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are further reasons why this cannot be correct.

First, it is difficult to imagine that the Justices accidentally overruled thirty

years of Supreme Court precedent, especially without mentioning the cases at

issue. Indeed, Justices Rehnquist, Scalia, and Kennedy all advocated for

McDonnell Douglas in their dissent in Price Waterhouse208 and certainly would

have made clear their reasons for departing from that scheme now if their votes

in Costa eliminated McDonnell Douglas. In any event, it is well within the

Court’s authority to change its mind if Professor Van Detta is correct. Second,

Professor Van Detta contends that the holding in Costa, coupled with the facts of

the case, demonstrates that all discrimination cases are mixed-motive cases.209

Specifically, he argues that because Costa involved “garden-variety”

discrimination facts that ordinarily would proceed under McDonnell Douglas, it

must mean that the scheme is dead.210 However, this again misses the point that

the district court in Costa had instructed the jury that it must first find intentional

discrimination before the burden shifted to the employer.211 Moreover, it ignores

Costa’s holding that the court may only give the instruction if the plaintiff has

sufficient evidence from which he or she can prove intentional discrimination.212

Neither Costa, nor any preceding Supreme Court decision says a plaintiff can

prove discrimination with nothing more than a prima facie case.213 Finally,

Professor Van Detta’s argument about what Costa means is based largely upon

inference, assumption, and other arguments about what Costa must mean for

McDonnell Douglas, not what it actually said.214 That alone proves the point that

McDonnell Douglas remains intact.

This interpretation of Costa also suffers from the same problem as the

rationale in Dare II. Dare II chose to use the part of the McDonnell Douglas





only present sufficient evidence”). It did not address how discrimination is proved, the

standards for summary judgment, McDonnell Douglas, or judgment as a matter of law. See

id. at 91 n.1 (stating that the instant case did not require consideration of section 107’s

applicability “outside the mixed-motive context”). It did not reach a substantive constitutional

question like Brown.

208. Price Waterhouse v. Hopkins, 490 U.S. at 279 (Kennedy, J., dissenting).

209. Van Detta, supra note 2, at 136.

210. Id. at 134-35. We agree that the case involved garden-variety discrimination

facts, but we do not agree that the McDonnell Douglas scheme is dead.

211. Desert Palace, Inc. v. Costa, 539 U.S. at 92.

212. Id. at 95.

213. See generally id.; discussion supra Part II.

214. See, e.g., Van Detta, supra note 2, at 136 (“Without so stating, Justice Thomas

simply wrote the whole category of mixed-motive Title VII cases out of existence.”); id. at

137 (“[S]ometimes judicial actions speak louder than judicial words.”); id . at 138.

(“[S]ection 703(m) ‘does not mention, much less require . . . .’”) (quoting Desert Palace, Inc.

v. Costa, 539 U.S. at 94).

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framework it found favorable to plaintiffs—specifically, the prima facie case.215

However, it did not recognize that the prima facie case, when created, was not

meant to be an onerous burden given that the defendant’s rebuttal burden was not

heavy.216 Accordingly, Professor Van Detta, like Dare II, requires almost

nothing of the plaintiff to prove discrimination.

The presumption of discriminatory intent also ignores the reality of the

statute. Title VII applies to persons of all races, genders, national origins, and

religions.217 Accordingly, under Professor Van Detta’s framework, a Caucasian

man who lost his job could prove a case of race discrimination simply by

showing treatment different than at least one nonwhite employee—or, in the case

of gender discrimination, treatment different than a woman.218

In either circumstance, the employer would have to defend against the

Caucasian man’s discrimination claims by proving that gender or race had

nothing to do with the decision. Because Professor Van Detta himself

represented employers for over twelve years,219 his honest assessment must be

that the majority of plaintiffs’ claims, while believed to be legitimate by the







215. See supra note 166 and accompanying text.

216. See supra notes 169-70 and accompanying text.

217. See 42 U.S.C. § 2000-e(2)(a)(i) (2000) (prohibiting discrimination on the basis

of “race, color, religion, sex, or national origin”).

218. Professor Van Detta states:



Obviously, the easiest way to [prove discrimination] is through prima facie cases that

show treatment different from at least one other comparator, but this does not always

have to be the case. The most readily identifiable hallmark of such a factual context

will be comparative—i.e., specific examples of different treatment in similar

circumstances—but it cannot, nor should it be, limited to those kinds of situations.

Evidence in support of a prima facie case include imbalances in a workforce, lack of

efforts to add qualified minority candidates to hiring pools, expressions of hostility

toward protected groups in the workplace, statements formerly called “stray

remarks” that evince an “us-them” view of the workplace by nonminority employees,

atmospheres of unwelcomeness for minority employees, lack of advancement for

minority employees, lower minority retention rates, failure to do more than give lip

service in meeting the goals and timetables in affirmative action plans required for

federal contractors and subcontractors, and ineffectual handling of complaints of

harassment or discrimination by employees. Each and all . . . should be admissible,

when factually present, in every Title VII case to permit the trier of fact to determine

whether, in that case, to draw the inference that an employment decision at issue

(even if that decision per se has no particular causal relationship with these indicia of

bias) was caused in any part by the plaintiff’s membership in a protected class.

Van Detta, supra note 2, at 115-16 (citations omitted).

219. Id. at 79.

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plaintiffs, are legally meritless.220 Endorsing Professor Van Detta’s position

would simply hand a new weapon to a whole new group of plaintiffs to challenge

at-will employment221 decisions and extort settlements.222

This problem would also extend to situations in which the courts have

recognized claims of race discrimination against lighter-skinned African

Americans by persons with darker skin, of gender-based homosexual

discrimination, or claims of discrimination by persons of Puerto Rican descent





220. Management practitioners are well aware that the majority of discrimination

claims have no legal merit. Indeed, the EEOC’s published statistics show that it found

reasonable cause to believe there was discrimination in only 5.7% of the 81,293 charges in

2003. E QUAL E MPLOYMENT O PPORTUNITY C OMM ’N , ALL STATUTES: FY 1992-2003,

available at http://www.eeoc.gov/stats/all.html (last modified Mar. 8, 2003). The statistics are

similar in other years, with the most reasonable-cause findings topping in 2001 at 9.9% of the

filed charges. Id. The agency has found no case in approximately 60% of the cases in the

past decade. Id. As the agency charged with investigating and eradicating discrimination, the

EEOC’s statistics amply support the view that the majority of plaintiffs’ claims are legally

meritless.

221. For an excellent discussion of how at-will employment fosters employment and

economic growth, see WALTER K. OLSON, THE EXCUSE FACTORY: HOW EMPLOYMENT LAW IS

PARALYZING THE AMERICAN WORKPLACE 287-88 (1997). Olson argues that the United States

economy produced many more jobs and enjoyed much greater productivity than its

counterparts in Europe, which has restrictive employment laws. Id. at 288. Professor Van

Detta’s approach to discrimination would effectively abolish at-will employment, given the

ease of establishing a prima facie case of discrimination.

222. It is well known that employers often pay to settle meritless cases to avoid

expensive litigation costs. E.g., Jonathan T. Molot, How U.S. Procedure Skews Tort Law

Incentives, 73 IND. L.J. 59, 95 (1997) (citing Avery Katz, The Effect of Frivolous Lawsuits on

the Settlement of Litigation, 10 IN T ’ L R EV . L. & E C O N . 3, 4 (1990); Robert G. Bone,

Modeling Frivolous Suits, 145 U. P A . L. R EV. 519, 524 (1997); David Rosenberg & Steven

Shavell, A Model in Which Suits Are Brought for Their Nuisance Value, 5 INT’L REV. L. &

E CON . 3 (1985)). Small employers also settle despite the merits of the plaintiff’s claim

because they are less able to finance the defense or survive an adverse verdict. Michael

Selmi, The Value of the EEOC: Reexamining the Agency’s Role in Employment

Discrimination Law, 57 OHIO S T . L.J. 1, 36 (1996). The prospect of a guaranteed recovery

will drive rational, profit-driven plaintiff’s counsel to sign up as many employees as possible.

Under Professor Van Detta’s approach, as long as plaintiff’s counsel can establish a prima

facie case—a virtual certainty—there is no chance of losing, because Title VII will mandate

that the employer pays attorney fees. See 42 U.S.C. § 200e-5(k) (allowing courts to award

attorney fees to the prevailing party in Title VII cases). This is the ultimate no-lose litigation,

with employers serving as “super-ATMs.” This observation is further supported by

commentators sympathetic to plaintiffs, who have noted that, in deciding to select an

employment case, the amount of damages available for successful litigation is less relevant to

the plaintiff’s lawyer than the lawyer’s ability to recover attorney fees under the statute.

Selmi, supra, at 29. Other commentators have noted that “most contingent-fee plaintiffs’

attorneys can earn their living by filing more suits than they have time to investigate.” Molot,

supra, at 97.

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against those of Dominican descent.223 The point is, that if the premise for

presumed intent is that there is a history of unconscious discrimination, that

rationale falters when the statute itself must be applied in circumstances under

which there appears to be no recognized history of discriminatory bias.224

One of the most obvious problems with the paradigm proposed by

Professor Van Detta is Title VII itself. He posits that an employer can either

entirely escape liability by proving it did not discriminate, or prove a partial

defense that if it did discriminate, it would have reached the same reason

legitimately anyway.225 However, if, as Professor Van Detta argues, every Title

VII cases is a mixed-motives case, his statement that an employer can entirely

escape liability is not supported by the very statute that Professor Van Detta

claims supports his view that Costa has overruled McDonnell Douglas. That

statute, at best, only allows employers that have been found to discriminate to

minimize their loss and limit liability to the plaintiff’s attorney fees and comply

with any injunctive relief.226 Nowhere does it allow an employer to entirely

escape liability in a mixed-motives case. Accordingly, Costa cannot mean that

the 1991 Civil Rights Act entirely changed the paradigm and put the burden on

employers to disprove liability upon proof of a prima facie case, as Professor Van

Detta urges. Under Professor Van Detta’s reasoning, once a plaintiff establishes

a prima facie case, the very best an employer can hope for is to simply pay the

plaintiff’s legal fees and comply with any injunctive relief. The only employers

that would not be liable for attorney fees would be those in the unusual case in

when the plaintiff cannot make a prima facie case. Attorneys representing both

employers and employees can easily recognize the recipe for blackmail under

this methodology. In essence, any employer who terminated an employee would

be forced to settle or pay attorney fees, because it is hardly difficult to make a

prima facie case and thereby shift the burden to the employer.227

Finally, we must disagree with Professor Van Detta’s view that tort law





223. EEOC Commissioner Naomi Earp recently stated at an American Bar

Association meeting that “‘[m]any people don’t realize that color is a separate protected

category under Title VII.’” Charges of Color Bias Are on the Rise, Commissioner Earp Tells

Forum, Daily Lab. Rep. (BNA), at 226 (Apr. 5, 2004). Moreover, colorism is an ever-

increasing problem that reaches not only African Americans, but also individuals from India,

Pakistan, and South America. Id. Because of this new emerging problem, how can we

address the reality of colorism? Under Professor Van Detta’s proposal, we simply assume

racism and move on. However, colorism is not that simple.

224. Professor Van Detta cites little authority for the unconscious racism theory,

other than a few law review articles. Id. at 109 nn.193 & 196, 110 n.202.

225. Van Detta, supra note 2, at 77.

226. 42 U.S.C. § 2000e-5(g)(2)(B).

227. See supra note 169 and accompanying text.

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supports his approach.228 Whether discrimination claims should or should not be

treated as a tort is, in our view, essentially irrelevant. Under tort law, a plaintiff

still maintains the burden to prove the case by the preponderance of evidence.229

Except in unusual circumstances, the defendant is not presumed to have

committed the tort.230 For example, it is not the law that if a person can establish

that he or she was a patient of a physician who performed a surgery and there

was a bad outcome, the doctor is liable for malpractice unless he can prove

otherwise. However, that is precisely the easily manufactured presumption that

Professor Van Detta advocates in discrimination cases. To be sure, Professor

Van Detta’s article is well written, but until Congress or the Supreme Court says

otherwise, we believe his theory is not correct.



VII. CONCLUSION



Significantly, McDonnell Douglas has survived over thirty years of court

interpretation and analysis. Costa did not place a nail in the heart of McDonnell

Douglas. The 1991 Civil Rights Act, the numerous Supreme Court decisions

interpreting and applying McDonnell Douglas, and the decision in Costa itself

amply demonstrate that McDonnell Douglas is alive and well. While Professor

Van Detta proposes a sea change in the course of employment discrimination

litigation, Costa does not support this change.

We hope that this Article assists practitioners in understanding the

implications of Costa and where the proof burdens lie. To our learned colleagues

in academia, we hope that this Article focuses the discussion on the inner

workings of McDonnell Douglas and its burden-shifting scheme. While radical

theories are intellectually stimulating, this issue is important enough to

practitioners to focus on its real, practical aspects.

Professor Van Detta’s article and this Article are but two in a long line of

commentators and scholars addressing this critical issue in our society. We

encourage debate on this vital issue. Discrimination must be eliminated from our

society. The question is how. We believe that McDonnell Douglas provides a

fair and appropriate way to ferret out discrimination. If there are better ways, we

humbly call on others to show the way.









228. See Van Detta, supra note 2, at 81-83 (arguing that employment discrimination

is a tort and should be treated as such).

229. See DAN B. DOBBS, THE LAW OF TORTS § 150 (2000) (stating that the plaintiff

must prove each element of the case by a preponderance of the evidence).

230. See id. § 152 (stating that circumstantial evidence of a fact might shift the

burden of production or persuasion to the defendant).

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