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Publication Date

3-2000

Document Type

Article

Abstract

One of the many statutory changes brought about by the Civil Rights Act of 1991 involved an effort to overturn the United States Supreme Court's decision in Price Waterhouse v. Hopkins. In that case, the Supreme Court held that when the plaintiff shows that an impermissible factor (e.g., race or gender) played a motivating role in an employment decision, the employer still can avoid liability by proving that it would have made the same employment decision in the absence of the impermissible factor.

Congress responded by amending Title VII of the Civil Rights Act of 1964 so that the employer can be found liable if an impermissible factor played a motivating role in the employment decision, even if the employer would have made the same employment decision in the absence of the impermissible factor; however, if the employer can prove that it would have made the same decision, then the employee cannot recover damages or gain reinstatement, hiring, or promotion. A court still could order declaratory or injunctive relief, and it may still award attorney fees to the employee as the prevailing party. ...

This Article addresses the issue of mixed-motive discrimination and retaliation litigation in four parts. Part I briefly recounts the changes that the 1991 Act implemented. Part II discusses how the courts have addressed the issue of attorney fees when the employee proves that unlawful discrimination was a motivating factor in the adverse employment decision, but the employer proves that it would have reached the same decision in the absence of a discriminatory motive. Part III discusses the conflict among the courts over whether the 1991 Act even applies to mixed-motive retaliation cases. Finally, Part IV presents the argument that the majority rule that has emerged for both issues represents a practical and sensible approach to employment discrimination and retaliation litigation.

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