Alaska Employment Law

Court creates split with 11th Circuit

When the 1991 Congress amended various civil rights statutes, it narrowed the mixed-motive defense in Title VII, but not Section 1981 claims, in response to Price Waterhouse v. Hopkins, 490 US 228 (1989).  Price Waterhouse, after all, was a Title VII, not a § 1981 case.   The question arises, then, whether a § 1981 defendant may assert a full-blown mixed-motive defense - i.e., if the employer shows that its non-discriminatory motive prevails over its bias, is the plaintiff foreclosed from recovering injunctive relief and fees as well as damages and reinstatement?  The 11th Circuit has held that the employer in that situation defeats the entire § 1981 claim. 

The 9th Circuit now creates a circuit split by holding that the mixed motive defense in § 1981 and Title VII claims are co-extensive - not because the 1991 Act implicitly amended § 1981, but because the holding of Price Waterhouse didn’t apply to § 1981 claims.  

As to proof of mixed motive, the Court stressed the difficulty the employer has in obtaining summary judgment:

‘As to the employer’s proof, in most cases, the employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive.’ … ‘The mixed-motive inquiry is an intensely factual one.’ … Furthermore, since the  defendant bears the burden of proof on the mixed-motive defense, ‘the defendant[] must vault a very high hurdle’ to obtain judgment as a matter of law. … Accordingly, mixed-motive defenses are generally for the jury to decide.

Here, the employer’s reliance on a third-party’s investigation of plaintiff’s conduct (admitted misappropriation of money) was undercut by evidence (from a CPA perhaps employed as an expert witness) that the investigation was skewed to focus on the misconduct of plaintiff but not other employees. 

The Court also addressed the so-called “stray remarks” evidentiary objection, and stated:

We have held that bigoted remarks by a member of senior management may tend to show discrimination, even if directed at someone other than the plaintiff.  …  Furthermore, we have held that remarks by such a decisionmaker tend to show bias, even if several years old. ***  ‘[w]here … the person who exhibited discriminatory animus influenced or participated in the decisionmaking process, a reasonable factfinder could conclude that the amimus affected the employment decision.’

Metoyer v. Chassman, 2007 WL 2781909 (9th Cir. Sept. 26, 2007).   Judge Bea dissented in part from Judge D. W. Nelson’s opinion, in which Judge Rawlinson joined.

Note that the U S Supreme Court, on September 25th, granted cert in four § 1981 retaliation cases, triggering pessimistic predictions from the plaintiffs’ bar.  See Workplace Professor.

See Daily Developments in EEO Law for more on Metoyer.