I.   Background

A.   Price Waterhouse V. Hopkins

            The history of burden shifting in a mix-motive situation begins with the case of Price Waterhouse v. Hopkins.[i] In Price, the plaintiff accused the defendant, a public accounting firm, of gender discrimination when it failed to promote the plaintiff to partner.[ii]While comments that were made by partners of the firm, and the plaintiff’s supervisor indicated an environment of sex stereotyping,[iii]there also existed facts indicating the firm’s decision could have been for valid business reasons.[iv] Due in part to this conflict, the Court noted that it would be “illogical, indeed ironic,”[v] to “[require] the plaintiff to prove that any one factor was the definitive cause of the decsionmakers’ action,” and to do so “may be tantamount to declaring Title VII inapplicable.”[vi] In her concurrence, Justice O’Conner set forth the new structure of a mixed-motive claim.[vii]First the plaintiff “must show by direct evidence that an illegitimate criterion was a substantial factor in the decision.”[viii]Then the burden shifts to the defendant to show that if the illegitimate factor was removed from the decision-making process, there existed sufficient business reasons to come to the same decision.[ix] Failure will result in a finding against the defendant.[x] While this was the first time the burden-shifting scheme had been applied in this context, the Court relied heavily on a similar scheme from “bona fide occupational qualification” cases.[xi]In that context, courts had already found a burden-shifting scheme appropriate, as it allowed the plaintiff to prove membership in the protected class, and provided a defense for the defendant.[xii]

[i]           Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[ii]           *Id.*at 231-32.

[iii]          *Id.*at 235.

[iv]          Id. at 234.

[v]           *Id.*at 273.

[vi]          *Id.*

[vii]         *Id.*at 276-77.

[viii]         *Id.*at 276.

[ix]          *Id.*at 276-77.

[x]           *Id.*at 277.

[xi]          *Id.*at 248.

[xii]         *Id.*