Since the Supreme Court's opinion in Price Waterhouse v. Hopkins,1 the judicial system has been rife with confusion over the correct evidentiary standard to apply in "mixed-motive"2 cases of employment discrimination.3 Price Waterhouse was a plurality decision with Justices O'Connor and White issuing concurring opinions. This amalgam presented three distinct explanations of a plaintiffs evidentiary burden in establishing a prima facia case of employment discrimination under Title VII. While many courts have determined that Justice O'Connor's opinion requiring a plaintiff to establish its case by proving that illegitimate factors played a "substantial role" in the defendant's employment decision with "direct evidence," other courts have held plaintiffs to a much lesser burden.4 In 2003, the United States Supreme Court granted certiorari in Desert Palace, Inc. v. Costa? Costa provided the Court with a golden opportunity to resolve the confusion plaguing Title VII cases. In a short eight-page opinion, the Court concluded that "direct evidence" of discrimination was not required in order to bring a case under the "mixed-motive" analysis.6 Unfortunately, as evidenced by subsequent decisions applying Costa, this area of law remains unsettled.
This Note examines the inability and what appears to be resistance to resolving the confusion surrounding the disparate treatment7 cause of action. Part II outlines the evolution of individual employment discrimination and provides a detailed history of how the judicial system has attempted to deal with this "quagmire."8 Part III details the Court's holding and reasoning in Costa to provide a basis for its effect on Title VII. Part IV identifies and interprets the opinion's effect and points out areas where confusion remains. This Part also analyzes the lower courts' subsequent treatment of the Costa decision. Part V attempts to identify the reasons for the courts' inability and resistance to clarification of this area of law with a special emphasis on economic factors. Finally, Part VI suggests several "clear cut" alternatives to the current system, hypothesizes on whether these alternatives are necessary, and speculates on whether these alternatives would encounter resistance.
A. The Evolution of Modern Employment Discrimination Law
As part of its effort to deal with the "pervasive problem"9 of employment discrimination, Congress ratified Title VII of the Civil Rights Act of 1964.10 Title VII made it illegal for an employer to "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin."11 Enacted for the purpose of maintaining stable, productive work environments, Title VII protects employees by providing a civil remedy for workplace discrimination.12 This protection is hampered, however, because of the judicial system's inability to devise a clear test to resolve the statutory requirement that, to be in violation of Title VII, an adverse employment action must have occurred "because of the plaintiff-employee's membership in a protected class.13 Specifically, since employers rarely act with blatant discriminatory intent, the courts have been unable to resolve the amount and type of evidence necessary to establish a discriminatory animus.14 The result of this confusion is that employees are left without a clear understanding of the evidentiary requirements necessary to prove the existence of discrimination and satisfy the requirements to survive summary judgment.15
B. Circumstantial Evidence and the Pretext Analysis
In the 1973 landmark case of McDonnell Douglas Corporation v. Green,16 the U.S. Supreme Court attempted to allay this confusion by creating the pretext analysis for litigating employment discrimination cases based on circumstantial evidence.17 The pretext analysis consists of shifting evidentiary burdens between the plaintiff, who is attempting to prove a prima facie case of discrimination, and the defendant, who is trying to show a legitimate nondiscriminatory reason for the adverse action. …