[ Thomas ]
[ OConnor ]
DESERT PALACE, INC., dba CAESARS PALACE HOTEL & CASINO, PETITIONER v.
CATHARINA F. COSTA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 9, 2003]
Justice OConnor, concurring.
I join the Courts opinion. In my view, prior to the Civil Rights Act of 1991, the evidentiary rule we developed to shift the burden of persuasion in mixed-motive cases was appropriately applied only where a disparate treatment plaintiff demonstrated by direct evidence that an illegitimate factor played a substantial role in an adverse employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 275 (1989) (OConnor, J., concurring in judgment). This showing triggered the deterrent purpose of the statute and permitted a reasonable factfinder to conclude that absent further explanation, the employers discriminatory motivation caused the employment decision. Id., at 265 (OConnor, J., concurring in judgment).
As the Courts opinion explains, in the Civil Rights Act of 1991, Congress codified a new evidentiary rule for mixed-motive cases arising under Title VII. Ante, at 811. I therefore agree with the Court that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury.