Title VII provides 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, even though other factors also motivated the practice.” This is sometimes referred to as a mixed-motive case. Under a mixed-motive case, an employer can try to show that it would have made the same employment decision absent the unlawful reason.

For example, let’s say that an employee alleged she was fired for her sex. However, apparently there also was evidence that she had trouble getting along with her supervisor and other behavioral issues. This may qualify as a mixed-motive case. The employee must show that her sex was a motivating factor in the discharge decision. The employer must show that it would have made the same decision regarding the employee absent her sex—in other words that the employer would have fired her for her behavioral issues anyway. If the employer proves the same decision defense, it can prevent the plaintiff from collecting damages. However, the plaintiff may still be able to obtain attorneys’ fees and injunctive relief (an order prohibiting the employer from doing something).

The U.S. Supreme Court recognized mixed-motive claims for discrimination in Title VII in the gender discrimination case of Price Waterhouse v. Hopkins (1989; see LegalSpeak, p. 229). Ann Hopkins sued Price Waterhouse after she did not make partner at the accounting firm. Hopkins introduced evidence of gender stereotyping in the workplace. However, the employer said that Hopkins was too brusque and had personality issues that motivated the decision in part. The question before the U.S. Supreme Court was how to deal with cases in which an employer had both a permissible and impermissible motive—a mixed-motive case.

Under a mixed-motive claim, a plaintiff must show that an illegitimate motive (gender discrimination) played a role in the employer’s decision against the employee. If the employee meets this burden, the employer must then show that it would have made the same decision against the employee regardless of the bad motive.