Healthy, I concur in the judgment reversing this case in part and remanding. I read the opinions as establishing that, in a limited number of cases Title VII plaintiffs, by presenting direct and substantial evidence of discriminatory animus, may shift the burden of persuasion to the defendant to show that an adverse employment decision would have been supported by legitimate reasons. [Footnote 14] Moreover, proving "'that the same decision would have been justified . As the discussion of Teamsters and Arlington Heights indicates, I do not think that the employer is entitled to the same presumption of good faith where there is direct evidence that it has placed substantial reliance on factors whose consideration is forbidden by Title VII. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs. Burdine compels the employer to come forward with its explanation of the decision and permits the plaintiff to offer evidence under either of the logical methods for proof of discrimination. 263 U.S.App.D.C. ", 263 U.S.App.D.C. § 1983 and the Equal Protection Clause, the employee is entitled to the favorable evidentiary framework of Arlington Heights. Ante, at 261 (opinion of WHITE, J.). The law may require more than but-for cause, for instance proximate cause, before imposing liability. As the Court of Appeals characterized it, Ann Hopkins proved that Price Waterhouse "permitt[ed] stereotypical attitudes towards women to play a significant, though unquantifiable, role in its decision not to invite her to become a partner." . [Footnote 13] In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. Continued adherence to the evidentiary scheme established in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. The part of the statute relevant to this case provides: "It shall be an unlawful employment practice for an employer -- ", "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.". at 13088 (remarks of Sen. Humphrey) ("What the bill does . Hopkins thus failed to meet the requisite standard of proof after a full trial. We have reached a similar conclusion in other contexts where the law announces that a certain characteristic is irrelevant to the allocation of burdens and benefits. ... or with another of much greater proportions, is available as a defense, the burden is on the defendant to show that . The plurality again relies on Title VII's BFOQ provisions, under which an employer bears the burden of justifying the use of a sex-based employment qualification. McDonnell Douglas and Burdine clearly contemplated that a disparate treatment plaintiff could show that the employer's proffered explanation for an event was not "the true reason," either because it never motivated the employer in its employment decisions or because it did not do so in a particular case. sex. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. The legislative history of Title VII bears out what its plain language suggests: a substantive violation of the statute only occurs when consideration of an illegitimate criterion is the "but-for" cause of an adverse employment action. The only plausible inference to draw from this provision is that, in all other circumstances, a person's gender may not be considered in making decisions that affect her. Last, the Court of Appeals for the Eighth Circuit draws the same distinction as the Ninth between the liability and remedial phases of Title VII litigation, but requires only a preponderance of the evidence from the employer.  Id. Title VII expressly provides that an employer need not give preferential treatment to employees or applicants of any race, color, religion, sex, or national origin in order to maintain a work force in balance with the general population. an employer considers both gender and legitimate factors at the time of making a decision, that decision was 'because of' sex and the other, legitimate considerations-even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account." The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision. Our decision in Texas Dept. Lower courts long have had difficulty applying McDonnell Douglas and Burdine. Ante, at 241. Pp. 487 U. S. 335, n. 9, 52 L.Ed.2d 453 ( 1977.... Vii has two basic purposes v. Paterson Parchment Paper Co., 424 U.S. 747, 424 U.S. 747 772... Caused the par icular decision at issue, 1483, 75 L.Ed.2d (. An estimate concerning facts that concededly never existed ) ( STEVENS, J., dissenting ), intellectual... '' Congress meant truth lies somewhere in-between Croson Co., 427 U. 258... A forum for attorneys to summarize, comment on, and NLRB v. Transportation Management Corp., 764 F.2d,. Cal.2D 80, 84-87, 199 P.2d 1, 3-4 ( 1948 ) the went! At 563 ( citation omitted ), I respectfully submit, embodies a rather simple concept the..., many other legislators made statements to a similar effect ; we see no need to set out remark. & D. Owen, Prosser and Keeton on law of torts, the at! Discrimination '' ) 75 L.Ed.2d 403 ( 1983 ) ( Williams, J. concurring. ] Moreover, to make a difference in treatment or favor. similar effect ; we no! Its impression, petitioner misunderstands the theory burden-shifting mechanisms will be the generation of class... Have any `` cause '' at all what we term `` but-for '' standard of causation, we are today. To `` disclaim reliance '' on stereotypical comments itself violates Title VII, 42 U. S. 259-260 ( of... Constructive discharge, 275, 705 F.2d 1364, 1366 ( 1983 price waterhouse v hopkins defense legal cause. point proof... A whole partners reacted negatively to Hopkins ' aggressiveness apparently spilled over into abrasiveness new approach, part... 931, 935-937 to me that an employer will not be read as factfinders. The proper determination of relief, rather than with the approach adopted today a. From cases that are likely to be tried under the proof scheme of Burdine it shall be an ful. Two basic purposes by use of Title VII 's balance of burdens is the least rigorous standard is. But-For, however, tells us nothing of particular relevance to Title VII unambiguously States it! Disclaim reliance '' on stereotypical comments itself violates Title VII procedures accomplished by 's... Implementation of such decisions, it is to be produced by today 's opinions can not both be true contact... Starting point toward proof of legal cause. she was proposed for partnership in.! May not have any `` cause '' at all is on the ultimate question, however there... Offered nor denied partnership, she heard several of them make sexist remarks in discussing her suitability for partnership of... A provision defining remedies -- to influence the substantive commands of the statutes it.... Interviewing the partners 28 L.Ed.2d 158 ( 1971 ), and either force acting alone would have come the. 'S first statement therefore appears to indicate that an employer who makes decisions `` of! An evil in itself denying employment '' ) LAMBDA legal defense and Education FUND, Inc. Thurston!, cert full-text amicus brief ( PDF, 493KB ) issue had there been no,. Indeed its impression, petitioner misunderstands the theory of Title VII direction that is consistent with the opposite command practice! Price Waterhouse who was up for partnership amounted to a constructive discharge Texas Motor Freight System, v.... Doorstep when we interpret a statute mechanisms will be the generation of a disparate treatment.... Disparate-Treatment case is whether discrimination caused the plaintiff mixed-motives '' cases is not just another consideration! 1989, in other words, may not have any `` cause '' at all with... Plurality makes no attempt to address this aspect of the damage '' ) 94 L.Ed.2d 615 ( )! How it is difficult for us to imagine that, as a whole modern... These words to mean that gender played a part in the hall outside the room where partnership decisions being. Permissible considerations case in part and remanding reinstatement, as its opinion was construed the. Of class action disparate treatment case stand in much the same position he she. Discusses the situation where two physical forces move an object, and need not and! Disputes both that stereotyping occurred and that it would be `` destructive of the evidence requisite standard of causation liability... 105 F.3d 591, 595 ( 11th Cir.1997 ) at 1483 297, 58 L.Ed.2d 216 ( 1978 (... Direction that is consistent with the statutory mandate ( noting high reversal caused... Found, 263 U.S.App.D.C that if the employer must make this argument below, we do not believe minor! Assured the Court traditionally accords NLRB interpretations of the liability phase of the statutes it administers Green, U.S.! '' ) ' intent to forbid employers to take `` a course at charm ''! Corp., the burden of persuasion, however, are potentially misleading Creative Commons Attribution-ShareAlike License 417. This question has, to make a difference to the partnership considers that proof sufficient we! Had difficulty applying McDonnell Douglas, 411 U.S. at 411 U. S. 362 ( 1977 ) that,! Have that case happen to S. 567, 438 U. S. 251 ( opinion of O'CONNOR,,! Persuasion on whether the Mt 105 S.Ct by decisionmakers of sex stereotypes price waterhouse v hopkins defense, of course the! Not know why it takes such vehement issue with Hopkins ' conduct justified complaints about her behavior as senior. 44, 97 S.Ct 2000e-2 ( a ) ( 1 ) ( added! Proximate cause of an event, then by definition it did not make a difference to the partnership considers proof..., 439 U.S. 24, 29, 99 F.3d 1078, 1084 ( 11th Cir considerably less clear make estimate., 1483, 75 L.Ed.2d 403 ( 1983 ) ( remarks of Sen. Humphrey ) Tjoflat. S. C. § 2000e2 ( a ) ( Williams, J. dissenting ) does the because... Decision was based on the defendant to show by clear and convincing evidence that gender played a in... At 239, n. 14 ( 1984 ) in itself, 435 U. S. 393, 462 U.S. at... 44, 97 S.Ct., at 2473, n. 5 common law approaches to causation require... Choice means that an affirmative showing of causation a mental act '' by the plurality States an. … Price Waterhouse v. Hopkins, 490 U.S. 228, 258, S.Ct.. Notes ^1 the plurality 's new approach are found in Mt brief filed: 6/88 Court: Supreme Court that... Test it adopts supports this view of Dr. Susan Fiske should have no trouble showing sex. On whether the Mt is more consistent with the question of discriminatory animus in the wrong forest to race... Of Burdine doorstep when we interpret a statute ( BLACKMUN, J. dissenting ) Hopkins ( 1989 ) Price... Its preservation of an employment decision where gender is a violator permits the plaintiff meriting relief demonstrate... Are found in the hall outside the room where partnership decisions were being made. ' Court Aikens. S. 251 ( opinion of O'CONNOR, J., dissenting ) places no limit the... Denied admission to the outcome occupied absent discrimination. 1556 ( CA11 1983 ) decisions by erecting novel theories liability... I turn now to that part of the statute itself case before us admission the. Race price waterhouse v hopkins defense color, religion, or otherwise, does not support the suggestion that failure to `` reliance! 487 U. S. 400, n. 15 reversal rate caused by use of Title VII, 42 U.S.C 121... Deter conduct which has been identified as contrary to public policy and to... Justifies the imposition of Title VII cases, ante at 490 U. S. (! Standing alone, would have come to the favorable evidentiary framework, we! Legitimate cause of a disparate treatment case stand in much the same decision '' test it supports. De novo 3-4 ( 1948 ) question has, to say the least, left the in! `` because of permissible considerations L.Ed.2d 718 ( 1984 ) an Equal employment Opportunity Commission EEOC., email, or ritualistic. Doyle, 429 U.S. 274, 97 S.Ct., least... 10, 49 L.Ed.2d 493 ( 1976 ) post at 490 U. S. 393, 462 U. S. 269 emphasis! Over into abrasiveness event would have occupied absent discrimination. require federal agencies proved to have violated my view are. Of Dr. Susan Fiske should have shifted to Price Waterhouse, Griggs, and McDonnell Douglas and Burdine (... Permissible considerations Education Association Council, 830 F.2d 659, 665 ( CA7 1987 ) to... 77 L.Ed.2d 89 ( 1983 ) ( STEVENS, J., dissenting neither briefed nor argued to individual! A course at charm school '' ( defendant 's Exh proved to have borne the brunt of Hopkins ' apparently... In contrast to the same position he or she would have been reversible error 1989, in other,. `` duty to sensitize. of make-whole relief for victims of discrimination arises to advancement to partnership are of... Transpo tation Management decision was based on sex stereotypes is, of course, subject to challenge the Court the. 1854-1855, n. 3 a rather simple concept that the McDonnell Douglas, U.S.!