Comments on Pretext in EmploymentDiscrimination Litigation: MandatoryInstructions for Permissible Inferences?

It is perhaps surprising that nearly forty years after Congress enacted Title VII,1 courts still struggle with the most fundamental questions of how to analyze evidence proffered to prove discrimination, and how to instruct juries charged with determining whether employers have violated the law. Although jury trials have been available in Title VII cases only since Congress passed the far-reaching amendments contained in the Civil Rights Act of 1991,2 the basic proof paradigms have been well-developed since the Supreme Court first confronted Title VII cases in the early 1970s.3 The lower courts nevertheless struggle to translate the statutory and Supreme Court pronouncements into jury instructions. These efforts are fraught with difficulty in part because, as the Court has noted, "the question facing triers of fact in discrimination cases is both sensitive and difficult."4 The sensitivity of these factual questions derives in part from the awareness that laws against discrimination embody one of the nation's highest priorities.5 The questions are also sensitive because it is a serious matter to charge an employer with flouting these fundamental prohibitions, and a difficult and emotionally challenging task to render a judgment about what really motivated an employer's decisions. Jurors, for the most part, are people who have held jobs and who may be sympathetic with persons who have suffered indignities in the workplace, and yet they do not want to impose liability unjustifiably and perhaps thereby unfairly label an employer as racist or sexist. More to the point, judges want to be sure that jurors make their decisions based only on the law and facts presented, and not on their sympathies for the plaintiff. Because the question posed in employment discrimination is sensitive and difficult, and because the cases typically involve factual situations that resonate in common workplace experiences, the courts' task of formulating instructions that clearly guide jurors' deliberations in accordance with the law is particularly crucial. The courts' task has frequently generated divergent views about how to understand the evidence and law in discrimination cases.Another question somewhat analogous to the pretext instruction issue Mr. Vollmer discussed in his Note, that has also generated confusion, is whether to instruct a jury on "mixed motives" in the absence of direct evidence. The mixed motives rubric applies when it appears that both legitimate and illegitimate reasons motivated an employer to take action against an employee or applicant for employment. In a 1989 sex discrimination case, the Supreme Court decided that if an employer is partly motivated by a discriminatory reason it could nonetheless avoid liability if it could demonstrate that it would have made the same decision without reliance on the prohibited characteristic.6 Justice O'Connor wrote a concurring opinion in which she stated that the plaintiff would need to present "direct evidence" to show that the employer's "decisional process has been substantially infected by discrimination" before the special burden shift would be triggered.7Congress responded to Price Waterhouse v. Hopkins8 and other Supreme Court decisions by enacting the Civil Rights Act of 1991, which expressly overruled the premise that an employer could avoid liability under Title VII by establishing the same decision defense.9 Instead, Congress provided that an employer that established it would have taken the same action "in the absence of the impermissible motivating factor" would not be liable for back pay, reinstatement, or damages, but would only be subject to declaratory and injunctive relief, attorney's fees, and costs.10 The statute says nothing about the type of evidence needed to establish that a prohibited factor motivated a decision or to shift the burden to the employer to prove its affirmative defense. Most Courts regarded Justice O'Connor's concurring opinion in Price Waterhouse as the controlling analysis of the proof requirements in that case, and the majority of lower courts therefore assumed that the mixed motives burden-shifting depended on the plaintiff's presentation of direct evidence of discrimination. …