When an employee alleges that her employer acted adversely against her for a discriminatory reason, the most common defense for employers is that it was not motivated by a discriminatory reason but rather by some other, legal reason like job performance issues or economic circumstances. On some facts, both arguments may be true: An employer’s adverse action against an employee may be genuinely motivated by both discriminatory and non-discriminatory reasons. For example, a supervisor’s decision to promote a female employee could be motivated by the fact that she is perpetually late and by the fact that he thinks she should wear more makeup when talking to customers. In the legal realm, these types of cases are often referred to as “mixed motive” or “motivating factor” cases.
From an investigatory standpoint, mixed motives often take particular care to identify, analyze, and parse out. Given this difficulty, it may be tempting for investigators to focus primarily on what precise motivation had the most bearing on the at-issue adverse action—i.e., to analyze only whether a discriminatory reason was the direct cause of the adverse action or by failing to consider that discriminatory motives may still exist even when a valid, non-discriminatory motive is apparent. But investigators should resist that temptation because, if an allegation of discrimination makes it to litigation, a finding that an adverse action was motivated even in small part by a discriminatory reason can mean a world of difference for employers and employees alike. It is thus essential for investigators to thoughtfully investigate and understand mixed motives and to understand the practical and legal consequences a finding of mixed motives could impose for clients down the line.
There are two questions investigators should ask themselves when mixed motives arise in an investigation: First, what does the law governing the at-issue allegation of discrimination require when mixed motives arise? And second, would the at-issue adverse action have happened even without the discriminatory motivation?
The answer to the first question is important because mixed motives play different roles and carry different consequences in different types of discrimination allegations. For allegations of discrimination protected by Title VII—i.e., discrimination based on race, color, religion, sex, or national origin—“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.”[1] In other words, an employee succeeds on a claim of employment discrimination under Title VII when she proves that her protected status under Title VII played any role, even if small, in the at-issue adverse action.
The same is not true, however, for retaliation claims and claims of age discrimination under the Age Discrimination in Employment Act. In those cases, proving that retaliation or age was a motivating factor alone is not enough to succeed; instead, an employee must prove that the illegal motive (retaliation or age discrimination respectfully) actually caused the adverse action taken against her—i.e., she must prove that, but-for the illegal motive, the adverse action would have never happened.[2] For allegations of disability-based discrimination or allegations of discrimination protected by the Family Medical Leave Act, courts across the country are divided on whether a mixed motive alone is sufficient for a successful claim or whether the more stringent, but-for cause standard applies.[3]
Once an investigator understands what an applicable law says about and requires of mixed motives, she can move on to the second important inquiry: Would the at-issue adverse action have happened even without the discriminatory motivation? The relevance of this inquiry is apparent for those types of allegations just discussed where there is no cognizable or legally protected claim for employees if discrimination was not the deciding factor in an adverse action. However, this inquiry is important even in discrimination claims protected by Title VII, as an employee in those cases is entitled to significantly lesser relief if her employer can prove that it would have taken the same adverse action even without the discriminatory motive.[4] Thus, when an investigator identifies several competing motives for an adverse action, she should query just big of a role each motive played if one of the motives was discriminatory. The answer to that question is undoubtedly one her client—whether external, internal, or otherwise—wants and needs clarity on and is key to a thorough investigation.
[1] 42 U.S.C. § 2000e-2(m).
[2] See University of Texas Southwestern Medical Center v. Nassar), 570 US 338 (2013) (holding that the but-for test, rather than the motivating factor test, applies to retaliation claims); Gross v. FBL Financial Services, 557 U.S. 167, 176 (2009) (“To establish a disparate-treatment claim under the plain language of the ADEA, . . . a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.”).
[3] For example, compare Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (“The proper causation standard under the ADA is a ‘motivating factor’ test.”) to Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010) (“Only by proving that a forbidden criterion was a but-for cause of the decision can the plaintiff avail herself of relief [under the ADA].”).
[4] 42 U.S.C. § 2000e(g)(2)(B). This relief limitation is significant for employers, as it prevents employees from recovering things like backpay or reinstatement to their position. However, it is not so favorable to employers that they should be unconcerned about the consequences—employees can still, among other things, recover their attorney’s fees and costs, get court orders against them, have judgements entered against them.