PRICE WATERHOUSE, PETITIONER V. ANN B. HOPKINS

   No. 87-1167

   In the Supreme Court of the United States

   October Term, 1987

   On Writ Of Certiorari To The United States Court Of Appeals For The
District Of Columbia Circuit

   Brief For The United States As Amicus Curiae

            TABLE OF CONTENTS
   Question presented
   Interest of the United States
   Statement
   Summary of argument
   Argument
      I. Title VII requires a plaintiff claiming disparate
         treatment to show that an illegal motive caused an
         adverse employment decision
         A. Causation is a required element of liability under
            Title VII
         B. Causation is established if an illegal motive was
            sufficient by itself for an adverse employment
            decision, or if an illegal motive was necessary in
            combination with another motive or motives for the
            decision
         C. In determining liability under Title VII,
            "mixed motive" cases should be treated the same as
            "single motive" cases
         D. The plaintiff bears the burden of persuasion on
            causation
     II. A defendant may limit the plaintiff's remedy by
         showing that the employment decision would have been the
         same without the illegal cause
    III. Stereotyping, without more, does not constitute
         a violation of Title VII
     IV. The case should be remanded for reconsideration in
         light of the correct legal standards
   Conclusion

                          QUESTION PRESENTED

   Whether, in this Title VII disparate treatment action, the court of
appeals properly held that evidence of sexual stereotyping placed the
burden of persuasion on the defendant to show by clear and convincing
evidence that the decision against promoting respondent to partner was
caused by reasons other than intentional sex discrimination.

                     INTEREST OF THE UNITED STATES

   This case presents important issues concerning the meaning and
application of Title VII of the Civil Rights Act of 1964, 42
U.S.C.2000E et seq.  The United States has responsibility for
enforcing that statute.  Moreover, the United States, as the nation's
largest employer, is governed by Title VII'S requirements.

                               STATEMENT

   1. Petitioner is an accounting firm that, at the time this action
was commenced, had 662 partners in 90 offices.  New partners are
selected from the ranks of senior managers through a formal
recommendation-and-review process.  Partners in a local office propose
a candidate for admission.  Each of the firm's partners is then
invited to complete evaluation forms that request information
regarding the candidate's business development, technical experise,
and interpersonal skills.  The partners are also asked to make a
"bottom line" recommendation -- i.e., whether to admit, deny, or defer
consideration.  Pet. App.41a-42.

   Petitioner's Admissions Committee reviews each candidate's file and
interviews partners to supplement the written evaluations.  The
Admissions Committee prepares a summary of the evaluations.  The
Committee then makes recommendations to the firm's Policy Board, which
decides whether to put a candidate to a vote before the partnership,
to deny admission, or to place a candidate on "hold" for a specified
period.  Pet. App. 41a-42a.

   In 1982, respondent Hopkins was proposed for partnership.  She was
the only woman among the 88 candidates that year.  Respondent had been
successful as a senior manager at petitioner.  She played a pivotal
role in securing government contract, and had the best record of the
88 candidates in terms of obtaining major contracts.  Respondent had
no difficulty dealing with clients, and her clients were very pleased
with her work.  Respondent was viewed as a highly competent project
leader who worked long hours.  Pet. App. 43a.

   A number of petitioner's partners, however, told the Admissions
Committee that respondent had trouble with "interpersonal skills" --
in particular, that she was overly aggressive, unduly harsh, difficult
to work with, profane, and impatient with the staff.  Eight of the 32
partners who submitted written evaluations recommended that she be
denied admission;  three favored placing her candidacy on hold, and
eight stated that they had an insufficient basis for an opinion.
Based on the number of "no" votes and the negative comments, the
Admissions Committee recommended that "she should be HELD at least a
year" (Pet. App. 44a).  The Policy Board agreed.  A few months later,
two partners in respondent's home office decided that they could no
longer support her candidacy.  Without such support, respondent had no
chance of becoming a partner.  She resigned, started her own firm, and
commenced this action against petitioner for sex discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq. Pet. App. 43a-44a.

   2. At trial, respondent presented evidence to support three
theories of liability.  The district court rejected respondent's
initial theory that criticisms of her interpersonal skills were
pretextual (Pet. App. 46a).  The court found it "clear" that "the
complaints about the plaintiff's interpersonal skills were not
fabricated as a pretext for discrimination" (ibid).  According to the
district court, respondent's "conduct provided ample justification for
the complaints that formed the basis of the Policy Board's decision"
(id. at 46a-47a).

   Respondent further argued that, even if her interpersonal skills
were deficient, petititoner discrimated by admitting men with similar
problems into the partnership.  The district court, however, found
that the evidence did not support this theory (Pet. App. 48a-51a).
The court found that petitioner "had legitimate, nondiscriminatory
reasons for distinguishing between (respondent) and the male partners
with whom she compares herself" (id. at 48a).

   The third theory advanced by respondent was that petitioner's
decision-making process was tainted by sexual stereotyping.
Respondent alleged that male partners who criticized her interpersonal
skills based their evaluations on their view that assertive behavior
is tolerable in men but not in women (Pet. App. 51a-52a).
Specifically, respondent cited a number of comments made by male
partners, such as the remark that she needed to take a "course at
charm school" (id. at 51a), and the advice of a partner, who the
district court found spoke on behalf of the Policy Board (id. at 52a),
that respondent ought to walk, talk, and dress "more femininely"
(ibid.).  She also cited comments from the files of other women
partnership candidates, such as the remark that one candidate acted
like "Ma Barker" (ibid.).

   The district court found that "stereotyping played an undefined
role in blocking (respondent's) admission to the partnership" (Pet.
App. 54a).  The court also found, however, that the stereotypes
reflected in partner comments were "unconscious" as distinguished from
intentional (ibid).  The court accordingly concluded that "(t)he
comments of the individual partners and the expert evidence * * * do
not prove an intentional discriminatory motive or purpose" (ibid.).
In the district court's view, Title VII does not authorize the courts
to "police every instance where subjective judgment may be tainted by
unarticulated, unconscious assumptions related to sex" (id. at 55a).

   This did not end the district court's inquiry, however.  The court
went on to find that, "(a)lthough the stereotyping by individual
partners may have been unconscious on their part, the maintenance of a
system that gave weight to such biased criticisms was a conscious act
of the partnership as a whole" (Pet. App. 56a).  The court accordingly
held that because of its "failure to take steps necessary to alert
partners to the possibility that their judgments may be biased, to
discourage stereotyping, and to investigate and discard, where
appropriate, comments that suggest a double standard" (id. at
57a-58a), petitioner had violated Title VII.

   The district court then turned to the issue of remedy.  The court
acknowledged that it could not say that petitioner "would have been
elected to partnership if the Policy Board's decision had not been
tainted by sexually biased evaluations" (Pet. App. 59a).  Relying on
Williams v. Boorstin, 663 F.2d 109, 117 (D.C. Cir. 1980), and Day v.
Mathews, 530 F.2d 1083, 1085-1086 (D.C. Cir. 1976), however, the court
stated (Pet. App. 59a) that "once a plaintiff proves that sex
discrimination played a role in an employment decision, the plaintiff
is entitled to relief unless the employer has demonstrated by clear
and convincing evidence that the decision would have been the same
absent discrimination." The court found that petitioner had not met
this burden, and thus that respondent was entitled to relief.  /1/

   3. The court of appeals affirmed the ruling that petitioner
violated Title VII (Pet. App. 1a-39a).  The majority held that there
was sufficient evidence to support the finding that a sexual
stereotype -- i.e., that females should not be assertive -- infected
the partnership decision-making process.  The court of appeals
believed that this finding meant that respondent "was treated less
favorable than male candidates because of her sex" (id. at 19a).  The
court held that this fact "is sufficient to establish discriminatory
motive;  the fact that some or all of the partners at Price Waterhouse
may have been unaware of that motivation, even within themselves,
neither alters the fact of its existence nor excuses it" (ibid.).

   The court of appeals then rejected petitioner's argument that
respondent failed to prove "the exact impact that stereotyped comments
had on the Board's ultimate decision" (Pet. App. 19a).  The court held
that the district court "had ample support for its conclusion that
stereotyping played a significant role in blocking (respondent's)
admission to the partnership" (id. at 20a).  Once respondent proved
that fact, the court of appeals reasoned, petitioner bore the burden
"to show that the decision would have been the same absent
discrimination" (id. at 22a-23a).  The court of appeals concluded that
respondent did not carry that burden by clear and convincing evidence
(id. at 25a).  /2/

   Judge Williams dissented.  He believed that there was insufficient
evidence to support a finding of intentional discrimination (Pet. App.
38a).  He noted that the district court found that petitioner's stated
reason for not promoting respondent -- that she had poor interpersonal
skills -- was not a pretext;  thus as most respondent had proved
"generalized discrimination" or the "existence of sexist attitudes" in
the workplace (ibid.).  Accordingly, Judge Williams concluded that she
had been treated differently because she is a woman.

                          SUMMARY OF ARGUMENT

   1. Decisions in the lower courts are in a state of considerable
disarray both as to the meaning of the requirement that the plaintiff
must have suffered loss of employment opportunities "because of"
illegal discrimination -- the causal requirement of Title VII -- and
as to the procedures for establishing liability and entitlement to
relief.  The petition (Pet. I, 12) frames these issues in terms of the
proper treatment of Title VII cases involving "mixed motives," that
is, cases in which the evidence shows that both discriminatory motives
and nondiscriminatory motives play some role in reaching a particular
employment decision.  Although a number of lower courts have looked at
the issue in this way, we think that the correct legal analysis should
not vary depending on whether the case is categorized as one involving
"mixed motives" or "single motives." Virtually every Title VII
disparate treatment case will to some degree entail multiple motives.
Thus, if the elements of Title VII liability or the burden of
persuasion differs depending on the "proper" categorization of a case
as involving either mixed or single motives, litigation will focus on
what label should be affixed to cases, rather than on the ultimate
question in every Title VII case:  whether the defendant has
discriminated against the plaintiff on the basis of a prohibited
criterion.

   Title VII, in the tradition of the common law of torts, plainly
requires a causal connection between an adverse employment decision
and the plaintiff's race, color, religion, sex, or national origin.
This conclusion is compelled by the language of Section 703 of Title
VII, 42 U.S.C. 2000e-2, its legislative history, and the Court's
decisions.  But neither the statute nor this Court's decisions specify
how causation is to be defined.  In these circumstances, we think that
the proper meaning of causation under Title VII should be determined
by looking to the common law.  We do not agree, however, with those
courts that have characterized the common law as imposing a rigid "but
for" definition of causation, requiring that the illegal motive be a
necessary condition of the challenged decision.  The most accurate
description of the common law test is that an illegal motive is a
"cause" of a given outcome if the motive was sufficient by itself to
produce the outcome, or it it was a necessary element in any set of
motives that together was sufficient to produce the outcome.  This
test comports with common sense notions of causation by recognizing
that, in the case of two independent and sufficient motives, each
motive should be regarded as a "cause" rather than neither.  All Title
VII cases -- whether they involve one, two, or many motives -- may be
resolved under this common law view of causation.

   A Title VII plaintiff bears the burden of proving causation.  The
Court has often held that the plaintiff bears the burden of
"persuading the court that she has been the victim of intentional
discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 256 (1981).  And the plaintiff is such a "victim" only if the
employer's illegal motive caused an adverse employment decision.  A
contrary rule that would shift the burden of proof on causation to the
defendant is not required by the policies of Title VII, and would
present severe problems in defining the threshold showing that the
plaintiff would have to make before such a shift would occur.

   2. Although the plaintiff bears the burden of persuasion in proving
liability under Section 703 of Title VII, Section 706(g), which sets
forth the remedies for Title VII violations, allows a defendant to
limit the plaintiff's remedy by showing by a preponderance of the
evidence that it would have reached the same employment decision even
in the absence of an illegal cause.  Section 706(g) thus expresses the
same concern as this Court announced in Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274 (1977);  that a plaintiff should
not be placed in a better position than she would have occupied in the
absence of the illegal discrimination.

   3. The evidence in this case may support a finding that an illegal
motive caused petitioner's decision not to promote respondent.  The
lower courts, however, did not make this finding.  They based
petitioner's liability on evidence of stereotyping -- that is,
comments by some of petitioner's partners suggesting that women should
not be aggressive or assertive.  But the expression of stereotypes, by
itself, is not a Title VII violation.  Rather, comments reflecting
stereotypes should be regarded as evidence of illegal conduct.  To
make out a case of illegal sex discrimination, respondent must prove
that use of a sex stereotype was part of a motive that in fact
disadvantaged her.  Thus, the case should be remanded for the district
court to determine whether respondent was rejected as a partner at
least in part because of negative votes that were motivated by the
view that she is too aggressive for a woman.

                               ARGUMENT

   I. TITLE VII REQUIRES A PLAINTIFF CLAIMING DISPARATE TREATMENT TO
SHOW THAT AN ILLEGAL MOTIVE CAUSED AN ADVERSE EMPLOYMENT DECISION

   This case requires consideration of a number of basic questions
about the role of causation under Title VII:  Does Title VII require a
causal link between a discriminatory motive and an employment
decision?  If so, how is the concept of "cause" to be defined in the
Title VII context?  Does Title VII impose a different analysis of
causation in mixed motive cases than in single motive cases?  Who
bears the burden of proving causation?  And may a defendant limit the
plaintiff's remedy if the defendant proves that, in addition to an
illegal cause, an independent and wholly valid motive also explains
the employment decision?  The Court should resolve those questions in
light of the language and policies of Title VII, supplemented, where
appropriate, with reference to the understanding of the concept of
causation that has developed in the common law.

   A. Causation Is a Required Element of Liability Under Title VII

   There is no doubt that causation is a necessary element of Title
VII liability.  Section 703(a) of the Civil Rights Act of 1964, 42
U.S.C. 2000e-2(a) (emphasis added), provides that is shall be an
unlawful employment practice "to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individuals's race, color, religion, sex,
or national origin * * *." /3/ The words "because of" plainly connote
a causal connection between the employment decision and the
"individual's race, color, religion, sex, or national origin." /4/

   This Court's Title VII decisions reflect this understanding.  The
Court has described the evidentiary showing required to establish
liability in the disparate treatment context in a variety of ways.
Virtually all of these formulations, however, employ one or more
synonyms for causation.  See, e.g., Cooper v. Federal Reserve Bank,
467 U.S. 867, 875 (1984) (emphasis added) (question is whether "the
particular employment decision at issue was made on the basis of
race");  International Bhd. of Teamsters v. United States, 431 U.S.
324, 358 (1977) (emphasis added;  footnote omitted) (question is
whether "an employment decision was based on a discriminatory
criterion illegal under the Act");  McDonald v. Santa Fe Trail Transp.
Co., 427 U.S. 273, 282 n.10(1976) (emphasis added) ("no more is
required to be shown than that race was a 'but for' cause").

   Title VII's legislative history leads to the same conclusion.  One
of the most pointed objections to the legislation that eventually
became Title VII was that it would impose liability on an employer for
entertaining bad thoughts.  As Senator Ervin put it in an extended
colloquy with Senator Case, the Republican floor manager of Title VII,
it was feared that Title VII was a "thought control bill" (110 Cong.
Rec. 7254 (1964)).  Senator Case rejected this claim in the strongest
terms, noting (ibid. (emphasis added)) that the defendant "must do or
fail to do something in regard to employment.  There must be a
specific external act, more than a mental act.  Only if he does the
act because of grounds stated in the bill would there by any legal
consequences." As this makes clear, Title VII does not impose
liability for discriminatory animus without more.  It imposes
liability only when a discriminatory motive causes an adverse decision
with respect to the compensation, terms, conditions, or privileges of
employment.

   It would, or course, have been highly unusual had Title VII not
required some causal link between an illegal motive and the challenged
employment decision.  Throughout the law of torts, contracts, and
those aspects of criminal law where liability is defined in terms of
bringing about a proscribed result, it is not enough to show that the
defendant violated a legal rule and that the plaintiff suffered a
harm;  it is also necessary to prove that the breach of duty caused
the harm.  See generally O. Holmes, The Common Law 160 (1881);  Pound,
Causation, 67 Yale L. J. 1, 10-14 (1957);  cf. Valley Forge Christian
College v. Americans United For Separation of Church and State, 454
U.S. 464, 472 (1982).  For example, a defendant may act negligently in
breach of a general duty of care, but he is not liable in tort unless
his negligence causes harm to the plaintiff.  See Restatement (Second)
of Torts Section 430 (1965).  The causal language of Section 703(a)
shows that Congress legislated the same understanding when it enacted
Title VII.

   B. Causation Is Established if an Illegal Motive Was Sufficient by
Itself for an Adverse Employment Decision, or if an Illegal Motive Was
Necessary in Combination with Another Motive or Motives for the
Decision

   Although causation is plainly an element of Title VII liability,
neither the statue nor this Court's decisions specify how causation is
to be defined.  The only significant legislative history that sheds
light on this question occurred when Senator McClellan introduced an
amendment that would have modified Section 703)a) to provide that a
Title VII violation could be found only if an employment decision was
take "solely because of" an impermissible motive.  In effect, the
McClellan amendment would have eliminated any possibility of Title VII
liability in mixed motive cases -- where an employment decision is in
part the product of nondiscriminatory motives.  The Senate rejected
the amendment, as did the House (see 110 Cong. Rec. 2728, 13838
(1964)).  In opposing the proposal, Senator Case remarked (id. at
13837):

         The difficulty with this amendment is that it would render
      title VII totally nugatory.  If anyone ever had an action that
      was motivated by a single cause, he is a different kind of
      animal from any I know of.  But beyond that difficulty, this
      amendment would place upon persons attempting to prove a
      violation of this section, no matter how clear the violation
      was, an obstacle so great as to make the title completely
      worthless.

   The rejection of Senator McClellan's proposed amendment is
persuasive evidence that Congress contemplated that Title VII
liability could be established where the employment decision is the
product of multiple or "mixed" motives.  See McDonald v. Santa Fe
Trail Transp. Co., 427 U.S. at 282 n.10 (Title VII plaintiff need not
show "that he would have in any event been rejected or discharged
solely on the basis of his race, without regard to (other) alleged
deficiencies").  But beyond that, the legislative history, like the
statute itself, provides little explicit guidance in defining what
role a discriminatory motive must play in producing an employment
decision before it can be called a "cause."

   The problem is, however, a familiar one in the law.  As every
common lawyer knows, any event -- and certainly an event as complex as
an employment decision -- may be described as the consequence of
literally an infinite number of antecedents.  "This is the 'cone' of
causation, so called because, since any event has a number of
simultaneous conditions, the series fans out as we go back in time."
H. Hart & T. Honore, Causation in the Law 69 (2d ed. 1985) (citation
omitted).  The task for the courts is to pick out of the infinite
manifold of antecedents those which it is sensible, relative to the
purpose at hand, to emphasize as the cause or causes of an event.  /5/
As Congress implicitly recognized in rejecting the McClellan
amendment, this process cannot be accurately stated in terms of
whether a particular factor is the sole cause of a particular event.
Rather, what is needed is an analytical framework for picking out for
special attention those antecedents which may be denominated as causes
as opposed to "mere" background conditions.

   The lower courts are divided on how to define the requisite
standard of causation in cases in which one of the parties --
generally the defendant -- has made an issue of the multiplicity of
motives.  Some courts believe that Title VII requires proof that the
discriminatory motive was a necesssary condition or "but for" cause of
the employment decision.  See, e.g., Ross v. Communications Satellite
Corp., 759 F.2d 355 (4th Cir. 1985).  In this view, there can be no
liability under Title VII if the same decision would have been reached
in the absence of an illegal motive.  Other courts hold that Title VII
requires proof that the discriminatory motive was a "motivating
factor" or a "significant factor." See, e.g., Fields v. Clark
University, 817 F.2d 931 (1st Cir. 1987).  The courts that have
adopted the "necessary condition" or "but for" standard have done so,
at least in part, on the understanding that this is the minimal
definition of causation traditionally required by the common law.  In
contrast, the courts that have rejected that test in favor of the
"motivating factor" standard have cited decisions of this Court
adjudicating constitutional claims (see Village of Arlington Heights
v. Metropolitan House. Dev. Corp., 429 U.S. 252, 270 (1977);  Mt.
Healthy City Sch. Dist. Bd. of Educa. v. Doyle, 429 U.S. 274, 285-286
(1977), and the concern that the "but for" test is too stringent a
burden.

   We agree with those courts that look to traditional judicial
understandings of causation -- e.e., the common law -- as the
benchmark for defining causation under Title VII.  Contrary to the
usual formulation by these courts, however, we do not understand the
common law to require the plaintiff to make a showing of "but for"
causation in every case.  A more accurate description of the common
law test for causation, we think, is an illegal motive is a "cause" of
a given outcome if the motive was sufficient by itself to produce the
outcome, or if it was a necessary element in any set of factors that
together was sufficient to produce the outcome.  See H. Hart & T.
Honore, supra, at 107-129;  Wright, Causation in Tort Law, 73 Cal. L.
Rev. 1735, 1789-1790 (1985).  This is not the same as "but for"
causation, because an illegal motive can be a cause of an outcome even
if a legitimate motive or a set of legitimate motives was also
sufficient to produce that outcome.

   This is essentially the test for causation under the Restatement
(Second) of Torts (1965).  Section 431 of the Restatement provides
that negligent conduct is a "cause of harm to another if" it is "a
substantial factor in bringing about the harm." Section 432 of the
Restatement then states:

         (1) Except as stated in Subsection (2), the actor's negligent
      conduct is not a substantial factor in bringing about harm to
      another if the harm would have been sustained even if the actor
      had not been negligent.

         (2) If two forces are actively operating, one because of the
      actor's negligence, the other not because of any misconduct on
      his part, and each of itself is sufficient to bring about harm
      to another, the actor's negligence may be found to be a
      substantial factor in bringing it about.

   In other words Section 432(1) initially provides that the actor's
negligence is a cause ("substantial factor" in the Restatement's
terms) only if it is a necessary condition ("but for" cause) of the
harm;  but Section 432(2) then adds the proviso that the actor's
negligence is also a cause if it was sufficient to bring about the
harm, even if other forces were present that were also sufficient to
generate the harm.  In the end, therefore, the Restatement rejects a
rigid "but for" notion of causation in favor of a sufficiency view.
/6/

   We believe that the common law test outlined above should apply to
Title VII cases in the following way.  Suppose a partnership has a
rule that it will deny admission to anyone who receives four or more
negative votes.  If a candidate receives two negative votes because
she is a woman, and three because of her abrasive personality, then
the two discriminatory votes would be a cause of the decision (the
discriminatory votes are a necessary element of a set of four or more
votes sufficient to produce the outcome).  Alternatively, if the
plaintiff receives four negative discriminatory votes, and five
negative votes based on her personality, then the discriminatory votes
would also be a cause (the discriminatory votes being sufficient in
themselves to produce the outcome), even though it cannot be said that
the discriminatory votes are a "but for" cause.  Only if the
discriminatory votes were not sufficient either by themselves or in
combination with other votes could it be said that the discriminatory
votes were not a cause of the decision.  For example, if a candidate
received three negative votes because she was a woman, but not other
negative votes, and the partnership then decides unanimously for
economic reasons not to make any new partners, the three negative
votes would not be sufficient in themselves to produce the result, nor
would they be a necessary element in any set of conditions sufficient
to produce the result (the decision to defer making partners on
economic grounds being sufficient in itself without the added element
of the discriminatory votes).  /7/

   Because this concept of causation relies on the ideas of
"necessity" and the "sufficiency," it comports with what we mean when
we say that something "caused" a result -- i.e., that it contributed
to, or made a difference to, the outcome.  Indeed, this may be
implicit in the lower court decisions that adopt a "significant
factor" or a "motivating factor" necessarily implies that it was a
factor -- that it affected the outcome.  On the other hand, to
denominate a motive a "cause" if it did not produce the outcome,
either by itself or in combination with other elements, is to abandon
the statutory requirement of causation.

   C. In Determining Liability Under Title VII, "Mixed Motive" Cases
Should Be Treated the Same as "Single Motive" Cases

   In assessing the role of causation under Title VII, a number of
lower courts have suggested that either the definition of causation or
the burden of persuasion in establishing causation should vary
depending on whether the case is categorized as one involving "mixed
motives" or "single motives." See, e.g., Blalock v. Metals Trades,
Inc., 775 F.2d 703, 709-712 (6th Cir. 1985).  We think this is a
mistake.  As noted above, Congress recognized that virtually every
disparate treatment case will to some degree entail multiple causes.
Thus if the elements of Title VII liability or the burden of
persuasion differs depending on the "proper" categorization of a case
as involving either mixed or single motives, the predictable result
will be pointless litigation over what label should be affixed to
cases, rather than on the ultimate question in every Title VII case:
"whether the employer is treating 'some people less favorably than
others because of their race, color, religion, sex, or national
origin.'" Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)
(quoting International Bhd. of Teamsters v. United States, 431 U.S. at
335 n.15).

   Nor do we think this Court's decisions in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), and Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981), support the notion that disparate
treatment cases should be divided between those involving mixed
motives.  McDonnell Douglas and Burdine adopted the now familiar
three-step procedural process for resolving disparate treatment cases.
 Under this process, the plaintiff must initially establish a prima
facie case of employment discrimination;  /8/ if the plaintiff is
successful, the defendant must then come forward with evidence tending
to show that the adverse action was taken for legitimate,
nondiscriminatory reasons;  if the defendant's evidence raises a
genuine issue of fact, then the plaintiff must introduce evidence
tending to show either that the defendant's explanation "is unworthy
of credence," or that "a discriminatory reason more likely motivated
the employer" (Burdine, 450 U.S. at 256).  Although a number of courts
have suggested that this framework applies only to single motive
cases, and that mixed motive cases must be analyzed under a different
framework we think that the McDonald Douglas-Burdine framework is well
suited to all disparate treatment cases.

   This Court's decisions make clear that the McDonnell
Douglas-Burdine framework is not a process for uncovering which of two
possible explanations is the "sole" cause of an employment decision.
Rather, the framework employs what are in effect a series of
"presumption(s)" about causation in order to simplify the production
of evidence and proof in disparate treatment cases and to frame the
contested factual issues with "sufficient clarity" (Burdine, 450 U.S.
at 255).  Thus, if the plaintiff establishes a prima facie case and
the defendant fails to introduce the evidence of a legitimate,
nondiscriminatory explanation for the employment decision, this "in
effect creates a presumption that the employer unlawfully
discriminated against the employee" (id. at 254).  See also Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).  Similarly, if the
defendant comes forward with a legitimate, nondiscriminatory
explanation, but the plaintiff demonstrates to the satisfaction of the
trier of fact that the explanation is a pretext, then again the trier
of fact is entitled to presume from the plaintiff's prima facie case
that the decision was caused by discrimination.  Burdine, 450 U.S. at
256.  On the other hand, if the defendant comes forward with a
legitimate, nondiscriminatory explanation, and the plaintiff fails to
show that it is a pretext, then the trier of fact is entitled to
presume that the employment decision was not caused by discrimination.

   Clearly, the fact that the McDonnell Douglas-Burdine framework
relies on certain presumptions about causation in no way suggests that
employment decisions are always or even usually the product of one
cause.  Indeed, Burdine expressly contemplates that the plaintiff may
attempt to answer the defendant's explanation by introducing evidence
tending to show an alternative, discriminatory explanation for the
decision.  If the plaintiff follows this course, then the court is
presented at trial with what is in effect a case of mixed motives:
the defendant has offered one explanation, and the plaintiff another.
It would be artificial to insist in such a case that the "true"
explanation must always be either one or the other, and never (as
Senator Case indicated (see page 11, supra)) some combination of both.
 And it would be even more problematic to insist that, if the
explanation is some of both, the case must be decided under some
altogether different doctrinal rubric.  To determine liability by
first applying the McDonnell Douglas-Burdine framework and then, if it
appears at the trial that there were mixed motives, to superimpose
some burden-shifting procedure on top of this framework, would be to
compound procedural refinements in a confusing and ultimatley
unproductive fashion.  As we explain below (pages 21-24, infra), we
think that the burden-shifting adopted by Mt. Healthy Sch. Dist. Bd.
of Educ. v. Doyles, 429 U.S. 274 (1977), is appropriately brought to
bear in Title VII suits at the remedial stage, where distinct issues
are involved and there is a separate statutory basis imposing the
burden on the defendant.  To apply this doctrine at the liability
stage, however, would simply make the "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." United States Postal Service Bd. of Governors
v. Aikens, 460 U.S. 711, 716 (1983) (citation omitted).

   In sum, we believe that all Title VII disparate treatment cases
should be resolved under the McDonnell Douglas-Burdine framework,
whether they involve one, two, or multiple possible causes.  In many
of these cases, the issue of causation will be resolved by
presumption, and thus need not be confronted directly.  But when all
the presumptions are exhausted, the court must then "decide the
ultimate factual issue in the case" (Aikens, 460 U.S. at 715).  As set
forth in Section 703(a)(1), 42 U.S.C. 2000e-2(a)(1), that issue is
whether the plaintiff suffered discrimination "because of" his or her
race, color, religion, sex, or national origin.

   D. The Plaintiff Bears the Burden of Persuasion on Causation

   Since causation is a necessary element of Title VII liability, then
under this Court's decision in Burdine it follows that the plaintiff
has the burden of persuasion on this element.  The Court noted in
Burdine that the "ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff" (450 U.S. at 253).  In other
words, the plaintiff bears the burden of "persuading the court that
she has been the victim of intentional discrimination" (id. at 256
(emphasis added)).  And, as we have shown, the plaintiff is such a
"victim" only if the employer's illegal motive caused the adverse
employment decision.

   That the plaintiff bears the burden of persuastion on the element
of causation is reinforced by the legislative history of Title VII.
In the Senate debates, Senator Dirksen offered the following objection
to the proposed House bill (110 Cong. Rec. 7218 (1964)):  "If the
employer discharges a Negro, he must prove that the dismissal has
nothing to do with race.  When an employer promotes or increases the
pay of a white employee, he must show that he was not biased against
the Negro worker who was not promoted." Senator Clark, the Democratic
floor manager of Title VII, corrected Senator Dirkensen's
misunderstanding (ibid. (emphasis added)):  "The Commission must prove
by a preponderance (of evidence) that the discharge or other personnel
action was because of race." This allocation of burden of persuasion
on the charging party was reiterated by Senator Case as part of his
extended exchange with Senator Ervin over whether Title VII would
impose liability for discriminatory thoughts (id. at 7255 (emphasis
added)):  "The only way a state of mind can be proved is by an
external act, or by a pattern of acts, or a man, or by a treatment
that was given.  The burden of proof is on the plaintiff."

   There is no special need in the Title VII context to deviate from
the general tort rule that the plaintiff bears the burden of showing
causation (see Restatement (second) of Torts Section 433B (1965)).
The common law view of causation that we outlined above, in contrast
to a strict "but for" view, does not impose an undue burden on Title
VII plaintiffs.  The plaintiff need prove causation, like any other
element of liability, only by a preponderance of the evidence.  In a
case of multiple motives, therefore, the plaintiff must show only that
it was more likely than not that the discriminatory motive was
sufficient to produce the result.  The plaintiff need not exclude the
possibility that legitimate reasons were also sufficient to produce
the outcome.  Moreover, although the defendant will usually have
better access to facts about why the plaintiff was denied an
employment opportunity, this unevenness is largely eliminated because
the defendant already had the burden of producing any evidence tending
to show a legitimate explanation at stage two of the McDonnell
Douglass-Burdine framework.  As this Court has observed, the defendant
has "an incentive to pursuade the trier of fact that the employment
decision was lawful" and thus "normally will attempt to prove the
factual basis for its explanation" (Burdine, 450 U.S. at 258).

   On the other hand, a rule that required the burden of proof on
causation to shift to the defendant would present severe problems in
defining the "threshold" showing that the plaintiff would have to make
before such a shift would take place.  The lower courts that have
endorsed burden-shifting have generally required the plaintiff to show
that an illegal motive was a "significant factor" or a "motivating
factor" in the decision before shifting the burden to the defendant
(see page 12, supra).  If this means the plaintiff must show that the
illegal motive made a difference to the outcome -- that it was a
necessary element of a set of conditions sufficient to yield the
result -- then this is just another way of saying that the plaintiff
must show causation to establish liability:  the position we endorse.
But if it means that discrimination must be present, but that it need
not be such as to have contributed to the outcome, then it is hard to
differentiate this from shifting the burden to the defendant merely
upon the showing that there was "discrimination in the air." Other
possible formulations of the threshold showing -- such as that there
is "some evidence" of causation -- would also involve radical
departures from established formulations for apportionment of the
burden of proof in civil litigation.  There are no principles that can
be derived from the language of Title VII, its legislative history, or
common law precedent that instruct how much evidence the plaintiff
must produce -- short of the traditional preponderance standard --
before the burden shifts.  Accordingly, there is no legal
justification for treating the plaintiff's proof of causation
"differently from other ultimate questions of fact." Aikens, 460 U.S.
at 716.

   II. A DEFENDANT MAY LIMIT THE PLAINTIFF'S REMEDY BY SHOWING THAT
THE EMPLOYMENT DECISION WOULD HAVE BEEN THE SAME WITHOUT THE ILLEGAL
CAUSE

   Although causation is a necessary element of liability under Title
VII, and although the plaintiff bears the burden of persuasion on this
issue as on all other elements of liability, it does not follow that
the plaintiff in a disparate treatment action must necessarily bear
the burden of persuasion of showing that she is entitled to the
fullest measure of relief.

   In Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, supra, the
plaintiff alleged that he was not rehired as a teacher because he had
engaged in constitutionally protected speech.  This Court held that
the burden was properly placed upon" the plaintiff "to show that his
conduct was constitutionally protected," and that this conduct "was a
'motivating factor'" in the school board's decision (429 U.S. at 287
(quoting Village of Arlington Heights v. Metropolitan Hous. Dev.
Corp., 429 U.S. at 270-271 & n.21)).  As we understand it, a
"motivating factor" is simply a "cause" as that term is defined by the
common law -- i.e., a necessary element in a set of factors that are
jointly sufficient to produce the outcome.  See Mt. Healthy, 429 U.S.
at 286 ("A borderline or marginal candidate should not have the
employment decision resolved against him because of constitutionally
protected conduct.");  see also NLRB v. Transporation Mgmt. Corp. 462
U.S. 393, 395 (1983) (General Counsel of NLRB has burden of showing
that "antiunion animus contributed to the employer's decision to
discharge an employee").

   The Court in Mt. Healthy, however, further held that the defendant
may attempt to convince the trier of fact "that it would have reached
the same decision * * * even in the absence of the protected conduct"
(429 U.S. at 287).  The Court in effect qualified the result that
would have obtained under the common law's sufficiency standard by
allowing the defendant to show that the plaintiff would obtain an
underserved windfall if he received back pay for the failure to place
him in a job which would not have been his in any event.  See id. at
285;  see also Transportation Mgmt. Corp., 462 U.S. at 401 (employer
shown to have acted at least in part out of antiunion animus has
burden to show that "he would have acted in same manner for wholly
legitimate reasons").  /9/

   Similarly, Title VII gives a defendant the opportunity to prove
that it would have reached the same employment decision in the absence
of an illegal cause.  Section 706 (g) of Title VII, 42 U.S.C.
2000e-5(g), reveals that Congress had the same concern as the Court in
Mt. Healthy:  that a plaintiff should not be placed in a better
position than she would have been in the absence of an illegal motive.
 This section provides that, if a court finds that liability is
established, it may "order such affirmative action as may be
appropriate." But Section 706(g) goes on to provide that the court may
not order "hiring, reinstatement * * * promotion * * * (or) back pay"
if the court finds that employment decision was "for any reason other
than discrimination." In other words, in cases where there are
multiple sufficient causes for the employment decision, and one of
those causes is a set containing only nondiscriminatory motives,
Section 706(g) provides that reinstatement and backpay may not be
awarded, because the set of sufficient nondiscriminatory motives was a
"reason other than discrimination."

   Because Section 706(g) deals with the question of remedies, as
distinguished from the elements of a Title VII violation, it is proper
to place the burden on the defendant to prove that a given employment
decision would have been the same in a discrimination-free
environment.  See Local 28, Sheet Metal Workers' Int'l Ass'n v. EEOC,
478 U.S. 421, 447 (1986) (plurality opinion);  Transportation Mgmt.
Corp., 462 U.S. at 402.  If the defendant makes such a showing, the
plaintiff is made whole by an award of attorney's fees and an
injunction against future discrimination.  In effect, the defendant is
ordered to cease discriminatory activity, which enhances the
plaintiff's employment opportunities in the future.  But the defendant
need not hire, reinstate, promote or provide backpay to the plaintiff,
because such relief would "place an employee in a better position as a
result of the (defendant's discriminatory conduct) than he would have
occupied had (the defendant) done nothing." Mt. Healthy, 429 U.S. at
285.  /10/

   Although the Court has not expressly endorsed this reading of
Section 706(g), it has reached analogous conclusions in related Title
VII contexts.  See East Texas Motor Freight System, Inc. v. Rodriguez,
431 U.S. 395, 404 n.9 (1977) (noting that if a "company's failure even
to consider * * * applications was discriminatory," then "the company
was entitled to prove at trial that the respondents * * * were not
qualified and would not have been hired in any event");  International
Bhd. of Teamsters v. United States, 431 U.S. at 359 (once class
liability is found, individual relief can be limited if defendant
shows that he would have made the challenged decision for lawful
reasons);  see also Fadhl v. City & County of San Francisco, 741 F.2d
1163, 1167 (9th Cir. 1984) (Kennedy, J.) ("the burden of proof is on
the employer * * * and to avoid back pay the employer must show that,
absent the discrimination, the applicant * * * would not have been
hired");  Toney v. Block, 705 F.2d 1364, 1366 (D.C. Cir. 1983)
(Scalia, J.) ("it is unreasonable and destructive of the purposes of
Title VII to require the plaintiff to establish * * * the difficult
hypothetical proposition that, had there been no discrimination, the
employment decision would have been made in his favor").  Thus,
Section 706(g) should be construed to allow the defendant in a
disparate treatment case to prove that, because the adverse employment
decision would have been made in any event for legitimate,
nondiscriminatory reasons, the plaintiff will be made whole by an
award of attorney's fees and an injunction against future
discrimination.

   III. STEREOTYPING, WITHOUT MORE, DOES NOT CONSTITUTE A VIOLATION OF
TITLE VII

   The district court rested its findings of intentional
discrimination on the presence of comments reflecting sexual
"stereotypes" in petitioner's decision-making process -- i.e.,
comments made by some evaluating partners about how women should or
most women do comport themselves -- coupled with a finding that
petitioner did nothing to disavow these comments or to ensure that
they did not affect the ultimate decision.  These findings, we
believe, are insufficient to establish liability under Title VII.
Title VII, as we have noted above, is not a "thought control bill";
"(t)here must be a specific external act, more than a mental act." 110
Cong. Rec. 7254 (1964) (Sen. Case).  See also Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67 (1986) (sexual harassment violates Title VII
only if it is sufficiently severe to alter the conditions of the
victim's employment).  Stereotyping, as defined by the courts below,
is the harboring and perhaps expression of certain opinions about
behavior appropriate to or typical of certain groups.  The harboring
and expression of such views, by itself, does not violate Title VII.
As relevant here, Title VII bans discriminatory treatment because of
sex, not stereotypical thoughts.

   Of course, this does not mean that stereotyping is irrelevant under
Title VII.  Such opinions and their expression are generally offensive
to members of the group so characterized, even where the stereotype
may not be intrinisically demeaning.  And the reason for that, of
course, is that persons properly resent being judged as members of
groups rather than as individuals.  The offense is compounded where
the stereotype is unflattering, or suggests that the members of the
group possess undesirable characteristics.  Such statements are highly
probative evidence of discriminatory intent.  Indeed, the repeated
utterance of highly offensive stereotypes might in appropriate
contexts be enough in itself to constitute a form of racial or sexual
harassment justifying the imposition of Title VII liability.  See
Henson v. City of Dundee, 682 F.2d 897, 901-902 & n.4 (11th Cir.
1982).

   But where the claim is made, as it is here, that there has been
discrimination because of sex in making a particular employment
decision, more is needed than the showing that those who made the
decision harbored or even gave voice to stereotyping opinions.  Those
opinions must be shown in some way to have disadvantaged respondent in
her request for promotion and thus have played a causal role in her
being denied that promotion.  As we have said, even a positive or
neutral stereotype will often be offensive to its victim, but the
bigot (and the harboring of stereotypes is a pretty good definition of
bigotry) may in fact be disposed in favor, for stereotypical reasons,
of an unsuccessful applicant for a position.  In order to make out a
case of discriminatory denial it must be shown that the stereotyping
was part of a motive which improperly disadvantaged the applicant.
Although in many instances stereotyping will provide strong evidence
of discrimination, a court may not jump over the intermediate step of
showing discriminatory disadvantage and pass directly from
stereotyping to liability.

   In short, a narrow focus on "stereotyping" obscures the crux of
liability under Title VII -- disparity of treatment because of sex or
some other proscribed criterion.  An employer may of course legally
base employment decisions on concerns that an employee is to
aggressive, abrasive, or profane.  But in doing so, the employer must
apply its standard evenhandedly;  "aggressiveness," "abrasiveness" and
"bad language" cannot be the bases for rejecting female, but not male,
candidates.  In all events, use of and controversy over the meaning of
the term "stereotype" should not distract the parties and the court
from the ultimate issue:  whether the plaintiff can show by a
preponderance of the evidence that she was denied an employment
opportunity because of her sex.

   IV. THE CASE SHOULD BE REMANDED FOR RECONSIDERATION IN LIGHT OF THE
CORRECT LEGAL STANDARDS

   As the foregoing discussion suggests, we believe that both the
court of appeals and the district court committed fundamental legal
errors.  The court of appeals held (Pet. App. 22a-23a, 25a) that the
burden of persuasion on causation shifts to the defendant at the
liability stage, and requires the defendant to prove by clear and
convincing evidence that the same decision would have been made
notwithstanding the presence of discriminatory animus.  The district
court also appears to have adopted (id. at 54a) an improper standard
of causation, and may have endorsed a theory of liability based on the
mere presence of "stereotyping" in the decision-making process.  The
district court never found that discrimination caused petitioner's
decision -- i.e., that respondent was treated differently because she
is a woman.  Hence, the case should be remanded to the district court
to determine whether discrimination, as evidenced inter alia by
stereotyping comments, caused the decision not to promote respondent.

   There may be sufficient evidence in the record to support a finding
that an illegal motive caused petitioner's employment decision.  The
district court found that the head partner at the office where
respondent worked was the person "responsible for telling (respondent)
what problems the Policy Board had identified with her candidacy"
(Pet. App. 52a).  This partner, in counseling respondent about what
she should do to overcome the reservations of the Policy Board, told
respondent "to walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear jewelry"
(ibid. (footnote ommitted)).  This evidence could support a finding
that the decision to deny respondent partnership was caused, at least
in part, by an impermissible motive.  /11/ Comments made by evaluating
partners -- e.g., that respondent should take a "course at charm
school" (id. at 51a) and that she is "macho" (id. at 52a) -- are
consistent with this assessment of the reasons for the Policy Board's
decision.  These comments, whether termed "stereotypes" or something
else, may be appropriately considered as evidence that respondent's
sex determined the outcome of the evaluation process and that she was
treated less favorably because she is a woman.  See Furnco Constr.
Corp. v. Waters, 438 U.S. at 578 (evidence of discriminatory intent
may "take a variety of forms").

   The district court found that "(d)iscriminatory stereotyping of
females was permitted to play a part" in the partnership decision
(Pet. App. 58a).  On the other hand, the district court stated that
petitioner "had legitimate, nondiscriminatory reasons for
distinguishing between (respondent) and the male partners with whom
she compares herself" (id. at 48a).  On remand, the district court
should clarify its findings by asking the critical question under
Title VII -- did sex discrimination cause petitioner's decision?  /12/
And the court should so find only if it believes that respondent
showed that it is more likely than not that her sex was a necessary
element of a set of reasons jointly sufficient to cause the decision.
In other words, respondent will have established Title VII liability
if the district court finds that she was rejected because of negative
votes that were motivated by the view that she is too aggressive or
abrasive for a woman.

                              CONCLUSION

   The judgment of the court of appeals should be vacated and the case
remanded to the district court for further proceedings.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attornery General

   BRIAN J. MARTIN

      Assistant to the Solicitor General

   DAVID K. FLYNN

   ROBERT J. DELAHUNTY

      Attorneys

   MAY 1988

   /1/ The district court held, however that respondent failed to
prove that she had been constructively discharged.  Accordingly, the
court limited respondent's relief to a declaratory judgment and
attorney's fees.  Pet. App. 60a-61a.

   /2/ The court of appeals reversed the aspect of the judgment not
awarding equitable relief for constructive discharge (Pet. App. 27a).

   /3/ Similarly, Section 703(a)(2), 42 U.S.C. 2000e-2(a)(2) (emphasis
added) provides that it shall be an unlawful employment practice to
limit, segregate, or classify employees "in any way which would
deprive or tend to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin."

   /4/ See, e.g. Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 499,
508, 111 P. 534, 538 (1910) ("To trace an injurious distinction from
the use of the phrase 'because of,' instead of the phrase 'caused by'
is merely logomachy.").

   /5/ For instance, when describing the cause of a fire the presence
of oxygen in the environment may or may not be appropriately picked
out for mention -- if the context is a scientific experiment or a
space vehicle accident the mention may be quite appropriate, while in
a case of domestic arson it obviously would not.  See H. Hart & T.
Honore, Causation in the Law 35 (2d ed. 1985).

   /6/ The common law test of causation differs from the "but for"
view of cause in cases of overdetermined outcomes.  A motive can be a
"cause" under the common law test even if another motive or set of
motives was sufficient for the outcome.  A motive is a cause if it was
sufficient, by itself or in combination with other factors, to produce
the result.  The common law thereby avoids the troublesome implication
of "but for" causation that, in cases with multiple sufficient causes,
there would be no cause.  As Hart and Honore state, in the case of
dual sufficient conditions, "a legal system should treat each as the
cause rather than neither." H. Hart & T. Honore, supra, at 124.
Accord W. Prosser, Law of Torts 239 (4th ed. 1971).

   The somewhat confusing formulation of the restatement, which
appears first to embrace and then to reject the "but for" test,
reflects more a dispute among academics than a substantial uncertainty
in the case law or even in the intuitions of common sense.  Common
sense notions of causation reflect simple models in which a force is
applied to produce a result -- e.g., a brick is hurled through a
window, or a person is pushed in front of a train.  See Epstein, A
Theory of Strict Liability, 2 J. Legal Stud. 151, 166-169 (1973).  And
such models implicitly depend on a sufficiency view of causation.
Some legal scholars, believing both common sense and the common law to
be insufficiently scientific and rigorous, proposed distinguishing
between "cause in fact" -- a supposedly scientific and rigorous test
-- and "proximate cause" or "legal cause" -- an additional hurdle to
be cleared by plaintiffs which was conceded to be "evaluative" and to
allow for policy judgments.  See R. Keeton, Legal Cause in the Law of
Torts vii-ix )1963);  L. Green, Rationale of Proximate Cause 200
(1927).  As Hart & Honore demonstrate, however, the case law does not
accord with this neatly dichotomous view.  Moreover, any analytic
rigor dissolves in the face of troublesome counterexamples, such as
those of multiple sufficient cause.  At the end of the day, the common
law, common sense, and the Restatement all support a sufficiency view.

   /7/ The common law view that we propose if not foreclosed by
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 )1976).  The
Court in McDonald held that an employer must apply its disciplinary
rules "'alike to members of all races'" (id. at 282, quoting Mcdonnell
Douglass Corp. v. Green, 411 U.S. 792, 804 (1973)).  In dictum, the
Court noted that a plaintiff need not prove that he would have "been
rejected or discharged solely on the basis of his race, without regard
to the alleged deficiencies;  * * * no more is required to be shown
than that race was a 'but for' cause" (427 U.S. at 282 n.10).  This
statement was not necessary to the Court's holding, and it simply
indicates that Title VII liability attaches if the plaintiff proves
"but for" causation;  the statement does not foreclose liability by
proof of a different type of causation -- one based on the notion of
sufficiency.

   /8/ The plaintiff must show that she (1) is a member of a protected
class;  (2) that she sought and was qualified for an employment
opportunity which was available;  (3) that despite her qualifications
she was rejected;  and (4) that after her rejection the employer
continued to seek qualified applicants for the position (see McDonnell
Douglas, 411 U.S. at 802).

   /9/ Mt. Healthy's reluctance to award the full measure of relief in
circumstances where the common law would have imposed liability -- and
the full measure of damages -- may perhaps be explained by the fact
that the common law was usually concerned with awarding compensation
for discrete harms incurred in the past, whereas Mt. Healthy,
Transportation Mgmt., and Title VII are concerned with on-going
employment relationships.  Just as the common law is reluctant to
award specific enforcement of an employment contract (see Restatement
(Second) of Contracts Section 367 (1981)), so the Court and Congress
have been reluctant to require an employer to hire, reinstate, or
promote an employee who is not qualified to perform the employer's
work, even if the employee has been the victim of intentional
discrimination at the hands of the employer.  Also, because of the
on-going nature of the employment relationship, injunctive relief
provides meaningful form of redress here, which is not true in the
case of discrete injuries incurred in the past.

   /10/ The defendant's burden of proof under Section 706(g), just as
the plaintiff's burden under Section 703, should be governed by the
"preponderance of the evidence" standard.  The "preponderance"
standard is the normal rule in civil litigation, and there is no
reason that a different rule should apply under the civil rights laws.
 See Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983).  Cf.
Kungys v. United States, No. 86-228 (May 2, 1988), slip op. 14 ("the
difficulty of establishing 'but for' causality, by clear, unequivocal
and convincing evidence many years after the fact is so great that we
cannot conceive that Congress intended such a burden to be met").
Thus, the lower courts in this case clearly erred in using a "clear
and convincing" evidence standard in this regard (Pet. App. 25a, 59a).

   /11/ The Equal Employment Opportunity Commission has noted that the
expression of stereotypical attitudes about whether women should be
aggressive is evidence of disparate treatment because of sex.  See
Dec. No. 74-15, 1983 CCH EEOC DEC Section 6394 (Aug. 7, 1973).

   /12/ In answering this question, the district court will of course
be addressing Judge Williams' concern (Pet. App. 38a) that there may
be no causal link between the stereotypical comments and petitoner's
employment decision.