|Price Waterhouse v. Hopkins
[ Brennan ]
[ White ]
[ O'Connor ]
[ Kennedy ]
Price Waterhouse v. Hopkins
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting.
Today the Court manipulates existing and complex rules for employment discrimination cases in a way certain to result in confusion. Continued adherence to the evidentiary scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), is a wiser course than creation of more disarray in an area of the law already difficult for the bench and bar, and so I must dissent. [p280]
Before turning to my reasons for disagreement with the Court's disposition of the case, it is important to review the actual holding of today's decision. 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. The shift in the burden of persuasion occurs only where a plaintiff proves by direct evidence that an unlawful motive was a substantial factor actually relied upon in making the decision. Ante at 276-277 (opinion of O'CONNOR, J.); ante at 259-260 (opinion of WHITE, J.). As the opinions make plain, the evidentiary scheme created today is not for every case in which a plaintiff produces evidence of stray remarks in the workplace. Ante at 251 (opinion of BRENNAN, J.); ante at 277 (opinion of O'CONNOR, J.).
Where the plaintiff makes the requisite showing, the burden that shifts to the employer is to show that legitimate employment considerations would have justified the decision without reference to any impermissible motive. Ante at 260-261 (opinion of WHITE, J.); ante at 278 (opinion of O'CONNOR, J.). The employer's proof on the point is to be presented and reviewed just as with any other evidentiary question: the Court does not accept the plurality's suggestion that an employer's evidence need be "objective" or otherwise out of the ordinary. Ante at 261 (opinion of WHITE, J.).
In sum, the Court alters the evidentiary framework of McDonnell Douglas and Burdine for a closely defined set of cases. Although JUSTICE O'CONNOR advances some thoughtful arguments for this change, I remain convinced that it is unnecessary and unwise. More troubling is the plurality's rationale for today's decision, which includes a number of unfortunate pronouncements on both causation and methods of proof in employment discrimination cases. To demonstrate the defects in the plurality's reasoning, it is necessary [p281] to discuss, first, the standard of causation in Title VII cases, and, second, the burden of proof.
The plurality describes this as a case about the standard of causation under Title VII, ante at 237, but I respectfully suggest that the description is misleading. Much of the plurality's rhetoric is spent denouncing a "but-for" standard of causation. The theory of Title VII liability the plurality adopts, however, essentially incorporates the but-for standard. The importance of today's decision is not the standard of causation it employs, but its shift to the defendant of the burden of proof. The plurality's causation analysis is misdirected, for it is clear that, whoever bears the burden of proof on the issue, Title VII liability requires a finding of but-for causation. See also ante at 261, and n. (opinion of WHITE, J.); ante at 262-263 (opinion of O'CONNOR, J.).
The words of Title VII are not obscure. 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.
42 U.S.C. § 2000e-2(a)(1) (emphasis added).
By any normal understanding, the phrase "because of " conveys the idea that the motive in question made a difference to the outcome. We use the words this way in everyday speech. And assuming, as the plurality does, that we ought to consider the interpretive memorandum prepared by the statute's drafters, we find that this is what the words meant to them as well. "To discriminate is to make a distinction, to make a difference in treatment or favor." 110 Cong.Rec. 7213 (1964). Congress could not have chosen a clearer way [p282] to indicate that proof of liability under Title VII requires a showing that race, color, religion, sex, or national origin caused the decision at issue.
Our decisions confirm that Title VII is not concerned with the mere presence of impermissible motives; it is directed to employment decisions that result from those motives. The verbal formulae we have used in our precedents are synonymous with but-for causation. Thus, we have said that providing different insurance coverage to male and female employees violates the statute by treating the employee "‘in a manner which, but for that person's sex, would be different.'" Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 683 (1983), quoting Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 711 (1978). We have described the relevant question as whether the employment decision was "based on" a discriminatory criterion, Teamsters v. United States, 431 U.S. 324, 358 (1977), or whether the particular employment decision at issue was "made on the basis of " an impermissible factor, Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875 (1984).
What we term "but-for" cause is the least rigorous standard that is consistent with the approach to causation our precedents describe. If a motive is not a but-for cause of an event, then by definition it did not make a difference to the outcome. The event would have occurred just the same without it. Common law approaches to causation often require proof of but-for cause as a starting point toward proof of legal cause. The law may require more than but-for cause, for instance proximate cause, before imposing liability. Any standard less than but-for, however, simply represents a decision to impose liability without causation. As Dean Prosser puts it, "[a]n act or omission is not regarded as a cause of an event if the particular event would have occurred without it." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed.1984). [p283]
One of the principal reasons the plurality decision may sow confusion is that it claims Title VII liability is unrelated to but-for causation, yet it adopts a but-for standard once it has placed the burden of proof as to causation upon the employer. This approach conflates the question whether causation must be shown with the question of how it is to be shown. Because the plurality's theory of Title VII causation is ultimately consistent with a but-for standard, it might be said that my disagreement with the plurality's comments on but-for cause is simply academic. See ante at 259 (opinion of WHITE, J.). But since those comments seem to influence the decision, I turn now to that part of the plurality's analysis.
The plurality begins by noting the quite unremarkable fact that Title VII is written in the present tense. Ante at 240-241. It is unlawful "to fail" or "to refuse" to provide employment benefits on the basis of sex, not "to have failed" or "to have refused" to have done so. The plurality claims that the present tense excludes a but-for inquiry as the relevant standard because but-for causation is necessarily concerned with a hypothetical inquiry into how a past event would have occurred absent the contested motivation. This observation, however, tells us nothing of particular relevance to Title VII or the cause of action it creates. I am unaware of any federal prohibitory statute that is written in the past tense. Every liability determination, including the novel one constructed by the plurality, necessarily is concerned with the examination of a past event. [n1] The plurality's analysis of verb tense serves only to divert attention from the causation requirement that is made part of the statute by the "because [p284] of" phrase. That phrase, I respectfully submit, embodies a rather simple concept that the plurality labors to ignore. [n2]
We are told next that but-for cause is not required, since the words "because of" do not mean "solely because of." Ante at 241. No one contends, however, that sex must be the sole cause of a decision before there is a Title VII violation. This is a separate question from whether consideration of sex must be a cause of the decision. Under the accepted approach to causation that I have discussed, sex is a cause for the employment decision whenever, either by itself or in combination with other factors, it made a difference to the decision. Discrimination need not be the sole cause in order for liability to arise, but merely a necessary element of the set of factors that caused the decision, i.e., a but-for cause. See McDonald v. Santa Fe Trail Tranportation Co., 427 U.S. 273, 282, n. 10 (1976). The plurality seems to say that, since we know the words "because of " do not mean "solely because of," they must not mean "because of " at all. This does not follow, as a matter of either semantics or logic.
The plurality's reliance on the "bona fide occupational qualification" (BFOQ) provisions of Title VII, 42 U.S.C. § 2000e-2(e), is particularly inapt. The BFOQ provisions allow an employer, in certain cases, to make an employment decision of which it is conceded that sex is the cause. That sex may be the legitimate cause of an employment decision where gender is a BFOQ is consistent with the opposite command [p285] that a decision caused by sex in any other case justifies the imposition of Title VII liability. This principle does not support, however, the novel assertion that a violation has occurred where sex made no difference to the outcome.
The most confusing aspect of the plurality's analysis of causation and liability is its internal inconsistency. The plurality begins by saying:
When . . . 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.
Ante at 241. Yet it goes on to state that
an employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision.
Ante at 242.
Given the language of the statute, these statements cannot both be true. Title VII unambiguously states that an employer who makes decisions "because of" sex has violated the statute. The plurality's first statement therefore appears to indicate that an employer who considers illegitimate reasons when making a decision is a violator. But the opinion then tells us that the employer who shows that the same decision would have been made absent consideration of sex is not a violator. If the second statement is to be reconciled with the language of Title VII, it must be that a decision that would have been the same absent consideration of sex was not made "because of " sex. In other words, there is no violation of the statute absent but-for causation. The plurality's description of the "same decision" test it adopts supports this view. The opinion states that
[a] court that finds for a plaintiff under this standard has effectively concluded that an illegitimate motive was a "but-for" cause of the employment decision,
ante at 19, and that this "is not an imposition of liability ‘where sex made no difference to the outcome,'" ante at 246, n. 11. [p286]
The plurality attempts to reconcile its internal inconsistency on the causation issue by describing the employer's showing as an "affirmative defense." This is nothing more than a label, and one not found in the language or legislative history of Title VII. Section 703(a)(1) is the statutory basis of the cause of action, and the Court is obligated to explain how its disparate treatment decisions are consistent with the terms of § 703(a)(1), not with general themes of legislative history or with other parts of the statute that are plainly inapposite. While the test ultimately adopted by the plurality may not be inconsistent with the terms of § 703(a)(1), see infra, at 292, the same cannot be said of the plurality's reasoning with respect to causation. As JUSTICE O'CONNOR describes it, the plurality "reads the causation requirement out of the statute, and then replaces it with an ‘affirmative defense.'" Ante at 276. Labels aside, the import of today's decision is not that Title VII liability can arise without but-for causation, but that, in certain cases, it is not the plaintiff who must prove the presence of causation, but the defendant who must prove its absence.
We established the order of proof for individual Title VII disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and reaffirmed this allocation in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under Burdine, once the plaintiff presents a prima facie case, an inference of discrimination arises. The employer must rebut the inference by articulating a legitimate nondiscriminatory reason for its action. The final burden of persuasion, however, belongs to the plaintiff. Burdine makes clear that the
ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.
Id. at 253. See also Board of Trustees of Keene State College v. [p287] Sweeney, 439 U.S. 24, 29 (1978) (STEVENS, J., dissenting). [n3] I would adhere to this established evidentiary framework, which provides the appropriate standard for this and other individual disparate treatment cases. Today's creation of a new set of rules for "mixed-motives" cases is not mandated by the statute itself. The Court's attempt at refinement provides limited practical benefits at the cost of confusion and complexity, with the attendant risk that the trier of fact will misapprehend the controlling legal principles and reach an incorrect decision.
In view of the plurality's treatment of Burdine and our other disparate treatment cases, it is important first to state why those cases are dispositive here. The plurality tries to reconcile its approach with Burdine by announcing that it applies only to a "pretext" case, which it defines as a case in which the plaintiff attempts to prove that the employer's proffered explanation is itself false. Ante at 245-247, and n. 11. This ignores the language of Burdine, which states that a plaintiff may succeed in meeting her ultimate burden of persuasion
either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.
450 U.S. at 256 (emphasis added). Under the first of these two alternative methods, a plaintiff meets her burden if she can "persuade the court that the employment decision more likely than not was motivated by a discriminatory reason." United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 717-718 (1983) [p288] (BLACKMUN, J., concurring). The plurality makes no attempt to address this aspect of our cases.
Our opinions make plain that Burdine applies to all individual disparate treatment cases, whether the plaintiff offers direct proof that discrimination motivated the employer's actions or chooses the indirect method of showing that the employer's proffered justification is false, that is to say, a pretext. See Aikens, 460 U.S. at 714, n. 3 ("As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence"). The plurality is mistaken in suggesting that the plaintiff in a so-called "mixed-motives" case will be disadvantaged by having to "squeeze her proof into Burdine's framework." Ante at 247. As we acknowledged in McDonnell Douglas, "[t]he facts necessarily will vary in Title VII cases," and the specification of the prima facie case set forth there "is not necessarily applicable in every respect to differing factual situations." 411 U.S. at 802, n. 13. The framework was "never intended to be rigid, mechanized, or ritualistic." Aikens, 460 U.S. at 715. 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. This is hardly a framework that confines the plaintiff; still less is it a justification for saying that the ultimate burden of proof must be on the employer in a mixed-motives case. Burdine provides an orderly and adequate way to place both inferential and direct proof before the factfinder for a determination whether intentional discrimination has caused the employment decision. Regardless of the character of the evidence presented, we have consistently held that the ultimate burden "remains at all times with the plaintiff." Burdine, 450 U.S. at 253.
Aikens illustrates the point. There, the evidence showed that the plaintiff, a black man, was far more qualified than any of the white applicants promoted ahead of him. More important, the testimony showed that
the person responsible for the promotion decisions at issue had made numerous [p289] derogatory comments about blacks in general and Aikens in particular.
460 U.S. at 713-714, n. 2. Yet the Court in Aikens reiterated that the case was to be tried under the proof scheme of Burdine. JUSTICE BRENNAN and JUSTICE BLACKMUN concurred to stress that the plaintiff could prevail under the Burdine scheme in either of two ways, one of which was directly to persuade the court that the employment decision was motivated by discrimination. 460 U.S. at 718. Aikens leaves no doubt that the so-called "pretext" framework of Burdine has been considered to provide a flexible means of addressing all individual disparate treatment claims.
Downplaying the novelty of its opinion, the plurality claims to have followed a "well worn path" from our prior cases. The path may be well worn, but it is in the wrong forest. 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. See Dothard v. Rawlinson, 433 U.S. 321, 332-337 (1977). In the BFOQ context, this is a sensible, indeed necessary, allocation of the burden, for there, by definition, sex is the but-for cause of the employment decision, and the only question remaining is how the employer can justify it. The same is true of the plurality's citations to Pregnancy Discrimination Act cases, ante at 248. In such cases, there is no question that pregnancy was the cause of the disputed action. The Pregnancy Discrimination Act and BFOQ cases tell us nothing about the case where the employer claims not that a sex-based decision was justified, but that the decision was not sex-based at all.
Closer analogies to the plurality's new approach are found in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), and NRLB v. Transportation Management Corp., 462 U.S. 393 (1983), but these cases were decided in different contexts. Mt. Healthy was a First Amendment case involving the firing of a teacher, and Transportation Management involved review of the NLRB's interpretation of the National Labor Relations Act. [p290] The Transportation Management decision was based on the deference that the Court traditionally accords NLRB interpretations of the statutes it administers. See 462 U.S. at 402-403. Neither case therefore tells us why the established Burdine framework should not continue to govern the order of proof under Title VII.
In contrast to the plurality, JUSTICE O'CONNOR acknowledges that the approach adopted today is a "departure from the McDonnell Douglas standard." Ante at 262. Although her reasons for supporting this departure are not without force, they are not dispositive. As JUSTICE O'CONNOR states, the most that can be said with respect to the Title VII itself is that "nothing in the language, history, or purpose of Title VII prohibits adoption" of the new approach. Ante at 269 (emphasis added). JUSTICE O'CONNOR also relies on analogies from the common law of torts, other types of Title VII litigation, and our equal protection cases. These analogies demonstrate that shifts in the burden of proof are not unprecedented in the law of torts or employment discrimination. Nonetheless, I believe continued adherence to the Burdine framework is more consistent with the statutory mandate. Congress' manifest concern with preventing imposition of liability in cases where discriminatory animus did not actually cause an adverse action, see ante at 262 (opinion of O'CONNOR, J.), suggests to me that an affirmative showing of causation should be required. And the most relevant portion of the legislative history supports just this view. See n. 3, supra. The limited benefits that are likely to be produced by today's innovation come at the sacrifice of clarity and practical application.
The potential benefits of the new approach, in my view, are overstated. First, the Court makes clear that the Price Waterhouse scheme is applicable only in those cases where the plaintiff has produced direct and substantial proof that an impermissible motive was relied upon in making the decision at issue. The burden shift properly will be found to apply in [p291] only a limited number of employment discrimination cases. The application of the new scheme, furthermore, will make a difference only in a smaller subset of cases. The practical importance of the burden of proof is the "risk of nonpersuasion," and the new system will make a difference only where the evidence is so evenly balanced that the factfinder cannot say that either side's explanation of the case is "more likely" true. This category will not include cases in which the allocation of the burden of proof will be dispositive because of a complete lack of evidence on the causation issue. Cf. Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) (allocation of burden dispositive because no evidence of which of two negligently fired shots hit plaintiff). Rather, Price Waterhouse will apply only to cases in which there is substantial evidence of reliance on an impermissible motive, as well as evidence from the employer that legitimate reasons supported its action.
Although the Price Waterhouse system is not for every case, almost every plaintiff is certain to ask for a Price Waterhouse instruction, perhaps on the basis of "stray remarks" or other evidence of discriminatory animus. Trial and appellate courts will therefore be saddled with the task of developing standards for determining when to apply the burden shift. One of their new tasks will be the generation of a jurisprudence of the meaning of "substantial factor." Courts will also be required to make the often subtle and difficult distinction between "direct" and "indirect" or "circumstantial" evidence. Lower courts long have had difficulty applying McDonnell Douglas and Burdine. Addition of a second burden-shifting mechanism, the application of which itself depends on assessment of credibility and a determination whether evidence is sufficiently direct and substantial, is not likely to lend clarity to the process. The presence of an existing burden-shifting mechanism distinguishes the individual disparate treatment case from the tort, classaction discrimination, and equal protection cases on which [p292] JUSTICE O'CONNOR relies. The distinction makes JUSTICE WHITE'S assertions that one "need look only to" Mt. Healthy and Transportation Management to resolve this case, and that our Title VII cases in this area are "inapposite," ante at 258-260, at best hard to understand.
Confusion in the application of dual burden-shifting mechanisms will be most acute in cases brought under § 1981 or the Age Discrimination in Employment Act (ADEA), where courts borrow the Title VII order of proof for the conduct of jury trials. See, e.g., Note, The Age Discrimination in Employment Act of 1967 and Trial by Jury: Proposals for Change, 73 Va.L.Rev. 601 (1987) (noting high reversal rate caused by use of Title VII burden-shifting in a jury setting). Perhaps such cases in the future will require a bifurcated trial, with the jury retiring first to make the credibility findings necessary to determine whether the plaintiff has proved that an impermissible factor played a substantial part in the decision, and later hearing evidence on the "same decision" or "pretext" issues. Alternatively, perhaps the trial judge will have the unenviable task of formulating a single instruction for the jury on all of the various burdens potentially involved in the case.
I do not believe the minor refinement in Title VII procedures accomplished by today's holding can justify the difficulties that will accompany it. Rather, I
remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination.
Burdine, 450 U.S. at 258. Although the employer does not bear the burden of persuasion under Burdine, it must offer clear and reasonably specific reasons for the contested decision, and has every incentive to persuade the trier of fact that the decision was lawful. Ibid. Further, the suggestion that the employer should bear the burden of persuasion due to superior access to evidence has little force in the Title VII context, where the liberal discovery rules available to all litigants are supplemented by EEOC investigatory files. Ibid. [p293] In sum, the Burdine framework provides a "sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination," Aikens, 460 U.S. at 715, and it should continue to govern the order of proof in Title VII disparate treatment cases. [n4]
The ultimate question in every individual disparate treatment case is whether discrimination caused the particular decision at issue. Some of the plurality's comments with respect to the District Court's findings in this case, however, are potentially misleading. As the plurality notes, the District Court based its liability determination on expert evidence that some evaluations of respondent Hopkins were based on unconscious sex stereotypes, [n5] and on the fact that [p294] Price Waterhouse failed to disclaim reliance on these comments when it conducted the partnership review. The District Court also based liability on Price Waterhouse's failure to
make partners sensitive to the dangers [of stereotyping], to discourage comments tainted by sexism, or to investigate comments to determine whether they were influenced by stereotypes.
618 F.Supp. 1109, 1119 (DC 1985).
Although the District Court's version of Title VII liability is improper under any of today's opinions, I think it important to stress that Title VII creates no independent cause of action for sex stereotyping. Evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent. The ultimate question, however, is whether discrimination caused the plaintiff's harm. Our cases do not support the suggestion that failure to "disclaim reliance" on stereotypical comments itself violates Title VII. Neither do they support creation of a "duty to sensitize." As the dissenting judge in the Court of Appeals observed, acceptance of such theories would turn Title VII "from a prohibition of discriminatory conduct into an engine for rooting out sexist thoughts." 263 U.S.App.D.C. 321, 340, 825 F.2d 458, 477 (1987) (Williams, J., dissenting).
Employment discrimination claims require factfinders to make difficult and sensitive decisions. Sometimes this may mean that no finding of discrimination is justified even though a qualified employee is passed over by a less than admirable employer. In other cases, Title VII's protections properly extend to plaintiffs who are by no means model employees. As JUSTICE BRENNAN notes, ante at 258, courts do not sit to determine whether litigants are nice. In this [p295] case, Hopkins plainly presented a strong case both of her own professional qualifications and of the presence of discrimination in Price Waterhouse's partnership process. Had the District Court found on this record that sex discrimination caused the adverse decision, I doubt it would have been reversible error. Cf. Aikens, 460 U.S. at 714, n. 2. That decision was for the finder of fact, however, and the District Court made plain that sex discrimination was not a but-for cause of the decision to place Hopkins' partnership candidacy on hold. Attempts to evade tough decisions by erecting novel theories of liability or multitiered systems of shifting burdens are misguided.
The language of Title VII and our well considered precedents require this plaintiff to establish that the decision to place her candidacy on hold was made "because of" sex. Here the District Court found that the "comments of the individual partners and the expert evidence of Dr. Fiske do not prove an intentional discriminatory motive or purpose," 618 F.Supp. at 1118, and that,
[b]ecause plaintiff has considerable problems dealing with staff and peers, the Court cannot say that she would have been elected to partnership if the Policy Board's decision had not been tainted by sexually based evaluations,
id. at 1120. Hopkins thus failed to meet the requisite standard of proof after a full trial. I would remand the case for entry of judgment in favor of Price Waterhouse.
1. The plurality's description of its own standard is both hypothetical and retrospective. The inquiry seeks to determine whether,
if we asked the employer at the moment of decision what its reasons were, and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.
Ante at 250.
2. The plurality's discussion of overdetermined causes only highlights the error of its insistence that but-for is not the substantive standard of causation under Title VII. The opinion discusses the situation where two physical forces move an object, and either force acting alone would have moved the object. Ante at 241. Translated to the context of Title VII, this situation would arise where an employer took an adverse action in reliance both on sex and on legitimate reasons, and either the illegitimate or the legitimate reason, standing alone, would have produced the action. If this state of affairs is proved to the factfinder, there will be no liability under the plurality's own test, for the same decision would have been made had the illegitimate reason never been considered.
3. The interpretive memorandum on which the plurality relies makes plain that "the plaintiff, as in any civil case, would have the burden of proving that discrimination had occurred." 110 Cong.Rec. 7214 (1964). Coupled with its earlier definition of discrimination, the memorandum tells us that the plaintiff bears the burden of showing that an impermissible motive "made a difference" in the treatment of the plaintiff. This is none other than the traditional requirement that the plaintiff show but-for cause.
4. The plurality states that it disregards the special context of affirmative action. Ante at 239, n. 3. It is not clear that this is possible. Some courts have held that, in a suit challenging an affirmative action plan, the question of the plan's validity need not be reached unless the plaintiff shows that the plan was a but-for cause of the adverse decision. See McQuillen v. Wisconsin Education Association Council, 830 F.2d 659, 665 (CA7 1987), cert. denied, 485 U.S. 914 (1988). Presumably it will be easier for a plaintiff to show that consideration of race or sex pursuant to an affirmative action plan was a substantial factor in a decision, and the court will need to move on to the question of a plan's validity. Moreover, if the structure of the burdens of proof in Title VII suits is to be consistent, as might be expected given the identical statutory language involved, today's decision suggests that plaintiffs should no longer bear the burden of showing that affirmative action plans are illegal. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626-627 (1987).
5. The plaintiff who engages the services of Dr. Susan Fiske should have no trouble showing that sex discrimination played a part in any decision. Price Waterhouse chose not to object to Fiske's testimony, and at this late stage we are constrained to accept it, but I think the plurality's enthusiasm for Fiske's conclusions unwarranted. Fiske purported to discern stereotyping in comments that were gender neutral -- e.g., "overbearing and abrasive" -- without any knowledge of the comments' basis in reality and without having met the speaker or subject.
To an expert of Dr. Fiske's qualifications, it seems plain that no woman could be overbearing, arrogant, or abrasive: any observations to that effect would necessarily be discounted as the product of stereotyping. If analysis like this is to prevail in federal courts, no employer can base any adverse action as to a woman on such attributes.