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Employment Discrimination
University of Mississippi School of Law
Secunda, Paul M.

I.       Title VII: Overview of Substantive Provisions
Overview
Covered Entities
1.      Title VII prohibits three types of employment-related institutions—employers, employment agencies, and unions—from engaging in discriminatory employment practices.
2.      § 701(b) defines “employer” as
a “person”
“engaged in an industry affecting commerce”
who has at least 15 employees for 20 weeks during the current or preceding calendar year
Doesn’t apply to US, Indian tribe, or any department or agency of the DC
3.      EEOC v. Rinella & Rinella:  Courts must examine the totality of a firm’s arrangements to determine whether an employer-employee relationship exists for Title VII purposes.
After ∏ was fired from her job as a legal secretary for ∆ for publicly accusing the firm of sex discrimination, she filed a charge with the EEOC (∏). The EEOC (∏) subsequently filed Title VII discrimination complaints against ∆. ∆ filed a motion to dismiss, claiming that it was not an “employer” as defined by the Civil Rights Act because, not counting the attorneys it employed as independent contractors, ∆ did not employ 15 or more employees, as required by § 701(b) of Title VII.
Courts must examine the totality of a firm’s arrangements to determine whether an employer-employee relationship exists for Title VII purposes. Title VII defines “employer” as a person who retains 15 or more employees for 20 calendar weeks in the current or preceding year. “Employee” is defined simply as an individual employed by an employer. Professionals, notwithstanding their lack of direct supervision, are covered by Title VII. Therefore, the greater independence and authority afforded attorneys associated with smaller law firms does not preclude their being employees of the firm. In this case, ∆ refers significant numbers of cases to its associates, who deposit their fees in the firm bank account. ∆ also dictates the attorneys’ compensation. Furthermore, all outward appearances to the public indicate that the attorneys are employed by ∆. Since the 6 to 8 attorneys associated with ∆ are clearly employees, and ∆ employs at least 11 clerical workers, ∆ employs more than 15 employees, and therefore comes within the coverage of Title VII. Motion denied.
4.      Most circuit courts have adopted an ad hoc balancing test rather than a bright line standard to determine whether a partner constitutes an “employee” for jurisdictional purposes. Under this formulation, rather than relying on the label that the employer affixes to the challenged position the courts look at the totality of the circumstances—no one of which is determinative—to resolve the issue. What factors should be considered in making this assessment? See Burke v. Friedman, 556 F.2d 867 (7th Cir. 1977) & Wheeler v. Hurdman, 825 F.2d 257 (10th Cir.)      
1.      Court looks at totality of firms arrangements
a.       Hiring and firing practice
b.      Control over salary
c.       Outward appearance to the public (door, letterhead, phone book)
 
5.      Clackamas Gastroenterology Associates v. Wells: Suppose a law firm is organized as a professional corporation rather than as a partnership. If some of the attorneys are shareholders and directors, should they be considered “employees” or employers” for the purpose of meeting the 15 employee jurisdictional requirement? The Supreme Court adopted a common law test for determining who qualified as an “employee” under the ADA—the conventional master-servant relationship as understood by common law agency doctrine. The touchstone of this standard is the element of the master’s control over the servant. The Court adopted the following 6 factors set forth in the EEOC Guidelines as relevant criteria for determining whether a shareholder-director is a statutory employee:
Whether the organization can hire or fire or set the rules of work of the individual
The extent, if any, to which the organization supervises the individual’s work
Whether the individual reports to someone higher in the organization
The extent, if any, to which the individual can influence the organization
Whether a written document expressing the parties intention to treat the individual as an employee
Whether the individual shares in the profits, losses and liabilities of the organization
The Court added that neither the possession of a particular title nor the existence of an employee agreement should necessarily be dispositive of the characterization of an individual as an owner or employee.
6.      Walters v. Metropolitan Educational Enterprises, Inc.: The Supreme Court unanimously adopted the “payroll” method for determining whether an employer satisfied the 15 employee requirement. The Court ruled that an employer “has” an employee whenever there is an employment relationship between the employer and the employee, regardless of whether the individual actually works or is compensated on any specific day during the period of that relationship. And, the Court continued, the existence of that relationship “is most readily demonstrated by the individual’s appearance on the employer’s payroll.”
This ruling presumably means that all part-time workers must also be counted towards the jurisdictional requirement.
Unpaid volunteers are held not to fall within the meaning of “employee.” Does this mean that they are not entitled to protection under Title VII or only that an employer who does not have fifteen statutory employees without them is not covered by the statute?
Can a discharged employee of a franchise bring a Title VII claim against the organization as well as against the owner/operator of the franchise?
 “Individuals” vs. “Employees”
Alexander v. Rush North Shore Medical Center:  Independent contractors are not protected by Title VII.
∏, a Muslim doctor from Egypt, was granted staff privileges as an anesthesiologist at ∆ hospital. On February 20, 1988, an emergency room doctor, after paging two on-cal physicians, called ∆, who was also on call, to come and help an injured patient. ∆ declined to come to the hospital because he was unfamiliar with the hospital’s equipment for the particular procedure. After undergoing hospital reviews, ∏’s staff privileges were revoked for violation of the on-call policy. ∏ claimed he was punished because of his religion and nationality, and filed complaints with the EEOC, which were dismissed for lack of evidence. ∏ then filed suit in district court, claiming that the revocation of privileges constituted discrimination in violation of Title VII. The court denied ∆’s motion for summary judgment, but at trial, ∆ prevailed. ∏ appealed.
Independent contractors are not protected by Title VII. Here, ∏ cannot bring a Title VII action against ∆ because, essentially, he acted as an independent contractor with ∆ rather than as an employee. Therefore, it was impossible for ∆ to interfere with his employment opportunities. The crucial question in determining an employment relationship is potential employer control over the manner in which work is accomplished. Here, ∏ brought his own specialized skills to the workplace, listed his own company on his tax returns, provided his own malpractice insurance and medical benefits, and was solely responsible for billing patients and collecting fees from them. Additionally, he had his own independent discretion in exercising care for his patients. These facts point to an independent contractor relationship and, as a result, the summary judgment motion made by ∆ should have been granted. ∆’s victory at trial, however, was proper, so the district court is affirmed.
Employee/independent contractor analysis: The Court applies a common law test, which involves the application of the general principles of agency to the facts of the case. The test focuses on five factors:
The extent of the employer’s control and supervision over the worker, including the directions on scheduling and performance of work
The kind of occupation and nature of skill required, including whether skills are obtained in the workplace
Responsibilities for the cost of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations
Method and form of payment and benefits
Length of job commitment and/or expectations
Of the several factors to be considered, the employer’s right to control is the most important when determining whether an individual is an employee or independent contractor. Thus, if an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist.
Covered Employment Decisions
Hishon v. King & Spalding: Advancement to partnership may qualify as a term, condition, or privilege of employment for purposes of Title VII.
When ∏ was hired as an associate attorney by the law firm ∆, she was promised that associates who received satisfactory evaluations would be promoted to partnership on a fair and equal basis. After she was twice rejected for partnership, she filed suit against the ∆, contending that she had been discriminated against on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964. At the time of her suit, no woman had ever served as a partner at the ∆ firm. The district court dismissed the complaint for failure to state a claim, concluding that Title VII was inapplicable to the selection of partners by a partnership. The appeals court affirmed, and ∏ appealed.
Advancement to partnership may qualify as a term, condition, or privilege of employment for purposes of Title VII. A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if that benefit is not part of a formal employment contract. The opportunity to become a partner was part and parcel of an associate’s status as an employee at ∆ firm. Accordingly, partnership consideration must be without regard to sex. ∏’s complaint states a claim cognizable under Title VII. She is entitled to her day in court to prove her allegations. Reversed and remanded.
II.    Defining and Proving Discrimination: Individual Disparate Treatment Cases
The Conceptual Framework
 
            Disparate Treatment             v.         Disparate Impact
            Must have actual animus                     Doesn’t have to be intended, just have the impact
            Requires intentional discrimination
            |                                                           \ |
            Individual                               v.         Group
           
            Examples
                DT Individual-a supervisor who harasses a particular employee repeatedly and changes the terms,                conditions, etc. due to that harassment
                Group DT claim- ER has a pattern/practice of discriminating against a class of individuals.
                Group DI- requiring a high school diploma. Though neutral it may affect a group
 
The type of case tells you the necessary evidentiary framework
Indiv. DT
Direct evidence- actually said or a written or unwritten practice. BFOQ- bona fide occupational qualification. Look at note 2 on pg 6 of supplement for def.
Circumstantial- based upon inference from presented facts “inferential leap” Cases are called inferential cases or McDonnell Douglas cases.
Mixed motive case- Price Waterhouse cases. Legitimate and illegitimate reasons
 
1.      Texas Department of Community Affairs v. Burdine: When the ∏ in a Title VII case has proved a prima facie case of discrimination, the ∆ bears only the burden of production—the burden of explaining clearly the nondiscriminatory reasons for its actions.
∏ was fired from her position as an accounting clerk when the ∆ was forced to reduce its staff. She then brought an action alleging that the failure to promote her and the decision to fire her were the result of sex discrimination in violation of Title VII. The district court, finding no evidence to support her claim, ruled in the ∆’s favor. The court of appeals, however, reversed the district court’s finding that the ∆ had sufficiently rebutted ∏’s prima facie case of gender discrimination. It held that a ∆ in a Title VII case bears the burden of proving its nondiscriminatory reasons, if any, by a preponderance of the evidence. It also held that a ∆ must prove that those hired or promoted were better qualified than the ∏. Because the ∆’s testimony carried neither of these burdens, the court reversed and remanded. The ∆ appealed, and the Supreme Court granted review.
When the ∏ in a Title VII case has proved a prima facie case of discrimination, the ∆ bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. The ultimate burden of persuading the trier of fact that the ∆ intentionally discriminated against the ∏ remains, at all times, with the ∏.  If the ∆’s explanation is legally sufficient to justify a judgment for the ∆, the burden then shifts to the ∏ to persuade the court that the reasons offered by the ∆ were not its true reasons but were merely a “pretext” for discrimination. Here, the appeals court erred by requiring the ∆ to prove its nondiscriminatory reasons by a preponderance of the evidence and to prove that the person retained instead of the ∏ has superior qualifications for the job. The ∆ bears only the burden of explaining clearly, and reasonably specifically, its legitimate reasons for its decision to terminate ∏ and to hire someone else. Vacated and remanded.
2.      McDonnell Douglas v. Green: The Supreme Court set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment.
First, the ∏ has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. The Court held that a ∏ may establish a prima facie claim of discrimination by showing four elements:
                                                        i.      ∏ is a member of a protected class
                                                      ii.      ∏ is minimally qualified for the position
                                                    iii.      The occurrence of an adverse employment decision, such as discharge or rejection
                                                    iv.      Someone outside protected class got the job or it remains open.
                                                      v.      The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the ∏’s rejection.
                                                    vi.      Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.
Second, if the ∏ succeeds in proving the prima facie case, the burden shifts to the ∆ “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
                                                        i.      The ∆ need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the ∆’s evidence raises a genuine issue of fact as to whether it discriminated against the ∏.
                                                      ii.      To accomplish this, the ∆ must clearly set forth, through the introduction of admissible evidence, the reasons for the ∏’s rejection. The explanation provided must be legally sufficient to justify a judgment for the ∆.
                                                    iii.      If the trier of fact believes the ∏’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the ∏ because no issue of fact remains in the case.
Third, should the ∆ carry this burden, the ∏ must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the ∆ were not its true reasons, but were a pretext for discrimination. A ∏ may succeed in this 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.
McDonnell Douglas framework
            Π                                                         Δ
            Prima Facie Case of                                            Establish Legitimate Non-Discriminatory reason
                Discrimination                                                                      Only get burden or production
                1. Membership in protected class
                2. Qualified for the job (Slap in the face)
                3. Adverse employment action
                4. Someone outside protected class got
                    my job or the job remains open.
 
Show Pretext- false explanation put forward
to cover up unlawful discrimination
 
3.      The Prima Facie Case
The facts necessarily will vary in Title VII cases, and the specification of the prima facie proof required from the ∏ is not necessarily applicable in every respect to differing factual situations. Courts have had to adapt the prima facie case to claims of discrimination not arising from refusals to hire or promote.
Where the particular circumstances of an employment decision suggest that it was not the result of discrimination, the ∏ may fail to establish a prima facie case even where the McDonnell Douglas/Burdine elements are present. It is possible that a ∏ will not satisfy the low threshold of a prima facie case because the circumstances of his termination do not give rise to or support an inference of discrimination or retaliation.
Reverse discrimination
                                                        i.      5th Circuit- The fact that the ∏ is not a racial minority in his workplace does not prevent him from making out a prima facie case of reverse discrimination.
                                                      ii.      Most courts have held that ∏s who are members of a historically favored group are not entitled to the McDonnell Douglas presumption unless they demonstrate the existence of background circumstances that support an inference that the ∆ is one of those unusual employers who discriminates against the majority. 
                                                    iii.      However, some courts have held that the non-minority ∏ need only present sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII to establish a prima facie case in the context of reverse discrimination.
                                                    iv.      There is argument that the “background circumstances” requirement in reverse discrimination cases is unfair to non-minority ∏s because such claimants have to prove more facts than minority claimants to establish a prima facie case. The 7th Circuit justified the different requirements because discrimination against white men is a less common phenomenon than discrimination against minorities.
Most courts agree that a ∏ need not prove he was replaced or passed over in favor on someone from outside his class in order to establish a prima facie case. That one’s replacement is of another race, sex or age may help to raise an inference of discrimination, but it is neither sufficient nor a necessary condition. However, there remains some division over what must be shown to satisfy the third prong of McDonnell Douglas/Burdine.
The “Qualified” Element
                                                        i.      Burdine requires the ∏ to show as a part of the prima facie case that he was “qualified” for the position sought. Most courts hold that, because subjective factors may mask discrimination, to make out a prima facie case the ∏ need only show he satisfies the objective criteria for the job: the employer may then articulate the subjective factors in explanation for its action.
                                                      ii.      Courts sometimes say that to establish a prima facie case in a discharge claim, that ∏ must show that he was meeting the employer’s “legitimate expectations” or was “performing satisfactorily.”
                                                    iii.      The qualification requirement cannot be interpreted so as to shift onto the ∏ an obligation to anticipate and disprove, in the prima facie case, the employer’s explanation for its decision.
                                                    iv.      As a general rule the ∏ must satisfy each of the prongs of the prima facie case in order to shift to the employer the burden of articulating a reason for the challenged action, but where the employer has not published the qualifications for a position the ∏ cannot be required to present evidence of actual job qualifications as part of his prima facie case.
                                                      v.      Where the employer has established objective qualifications for a position, an applicant who does not satisfy the qualifications may still be able to make out a prima facie case if it can be proved that the employer has not actually applied the qualifications in its hiring decisions.
                                                    vi.      5th Circuit- While an employer may rely on established job requirements in arguing that a ∏ has not made out a prima facie case, only objective requirements may be used at this stage because wholly subjective standards might be used to conceal discriminatory intent.
                                                  vii.      9th Circuit- In a discharge case an employee’s self-assessment of his work performance is relevant and may be sufficient to satisfy the ∏’s initial burden.
                                                viii.      7th Circuit- In limited circumstances where the ∏ claims that the qualification established by the employer is itself a pretext for discrimination, proof of a prima facie case is “merged” with the pretext stage.
The McDonnell Douglas/Burdine prima facie case is an evidentiary standard, not a special pleading requirement.
4.      “Direct Evidence” as a Substitute for the Prima Facie Case
Direct evidence of discrimination is relevant and will be admitted to establish that the employer’s articulated explanation is a pretext for discrimination. Direct evidence as contrasted with circumstantial evidence, refers to a type of evidence that, if believed, requires no inferential leap in order for a court to find the fact that the evidence is offered to prove. Thus in a disparate treatment case, if the trier of fact finds that a decision-maker expressed unlawful bias in connection with the ∏ or the employment decision in question, that finding will justify and indeed may compel, a finding of discriminatory motivation without further evidence.
Direct evidence of bias may also constitute a substitute for the prima facie case in a Burdine-type case.
Some courts have limited direct evidence to statements of bias by decision makers that explicitly refer to the decision alleged to be discriminatory.
Some courts have been willing to infer bias from a decision-maker’s inaction in the face of a biased statement by a non-decision maker.
Whether statements by decision makers constitute direct evidence of bias may depend less on the literal statements themselves than on the context in whic

d.
3.      The circuit courts have generally read Reeves as prohibiting a per se rule that ∏s offer more than a prima facie case and evidence of pretext in order to go to trial. However, uncertainty continues over the circumstances that justify summary judgment or judgment as a matter of law where the ∏ has both categories of evidence.
4.      At the very least, Reeves means that summary judgment or judgments as a matter of law should be relatively rare in cases where the ∏ has substantial evidence that the employer’s reasons are false.
5.      If, however, the ∏ concedes that the employer’s professed reason for the contested employment action is a pretext for a motive not prohibited by statute, summary judgment may be appropriate.
6.      The circuits are divided over whether a jury must be given a Hicks/Reeves pretext instruction. The Second, Third and Tenth Circuits mandate such an instruction.
Mixed Motive Cases and the CRA of 1991
1.      Price Waterhouse v. Hopkins: Once a ∏ in a Title VII action shows that unlawful discrimination played a motivating part in an employment decision, the employer may avoid liability only if by proving by a preponderance of the evidence that it would have made the same decision if it had not allowed discrimination to play a part in the decision.
∏ was a senior manager at ∆ in 1982 and sought a promotion to partner. According to company policy, partners submitted written comments and recommendations on each candidate and the Policy Board made the final decision. The written comments regarding ∏ included indications that some partners disliked her personality because of her gender. ∏ was denied the partnership although she was the only one out of 88 candidates who had secured a major contract for ∆. ∏ was informed that she should act and dress more femininely in order to improve her chances for partnership. ∏ filed suit under Title VII against ∆ for sex discrimination. The district court found that ∆ legitimately used interpersonal skills as one of the factors in partnership decisions. However, the district court held that ∆ had also relied on comments resulting from sex stereotyping in making the decision regarding ∏ and ruled against ∆ on the liability issue. The court of appeals affirmed the judgment but held that an employer could avoid liability by proving clear and convincing evidence that the same employment decision would have been made absent the impermissible consideration of gender. ∆ appealed.
Once a ∏ in a Title VII action shows that gender played a motivating part in an employment decision, the employer may avoid liability only by proving by a preponderance of the evidence that it would have made the same decision if it had not allowed gender to play a part in the decision. Title VII was enacted to make sex and race irrelevant in employment decisions but did not limit the other qualities that employers may legitimately consider. The language used in Title VII suggests that employment decisions based on a mixture of legitimate and illegitimate considerations are prohibited. In order to balance the employer’s right to make employment decisions free of interference, the employer is not liable under Title VII if the decision regarding a particular person would have been the same without the consideration of sex or race. Therefore, once a ∏ has shown that sex or race has played a motivating part in an employment decision, an employer must prove that the same decision would have been made based on legitimate reasons standing alone in order to avoid liability. This burden is most appropriately deemed an affirmative defense and must be proved by a preponderance of the evidence. The district court found that sex stereotyping was permitted to play a part in ∆’s decision on ∏’s promotion. Therefore, ∆ had the burden to prove, by a preponderance of the evidence, that ∏’s interpersonal skills alone, apart from the sex stereotyping, were the basis for the denial of the partnership. Since the court of appeals held that the standard was clear and convincing evidence, its judgment is vacated and the case is remanded.
J. O’Connor’s Concurrence: Where uncertainty as to causation has been created by an employer’s consideration of an illegitimate criterion, placing the risk of nonpersuasion on the ∆ is appropriate. However, this should be limited to cases, such as this one, in which the ∏ has shown by direct evidence that an illegitimate criterion was a substantial factor in the decision.
J. Brennan’s decision differs from J. O’Connor’s opinion in that he suggests that if the decisional process is tainted by awareness of sex or race in any way, the burden of justification shifts to the employer, while O’Connor specifically would shift the burden only if discrimination is proven by direct evidence. In plurality decisions where a rationale is not adopted by at least five justices, the holding is considered to be the position taken by concurrence on the narrowest grounds. In this case, some circuits have interpreted O’Connor’s restriction to direct evidence as the holding of the Court.
2.      Causation and the Civil Rights Act of 1991
a.       In the fall of 1991, Congress enacted the Civil Rights Act of 1991, which was intended in part to reverse Price Waterhouse. § 107 of the 1991 Act amends §703 of Title VII (Unlawful Employment Practices) by adding the following subsection:
(m) Except as otherwise provided in this title, 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.
b.      The 1991 Act thus defines an unlawful employment practice to include any employment practice which proceeds, at least in part, from an unlawful motivation. However, the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a ∏.
c.       The 1991 Act expanded the scope of liability, it also restricted the kind of relief available in mixed-motive cases. § 706(g) of Title VII generally provides for a wide range of remedies against an employer guilty of unlawful employment practices, including reinstatement, back pay, and compensatory and punitive damages. § 107 of the 1991 Act adds to § 706(g) the following subparagraph:
(B) On a claim in which an individual proves a violation under § 703(m) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under § 703(m); and
 (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph [706(A)].
d.      Thus while legislatively reversing the liability/causation holding of Price Waterhouse, Congress adopted the affirmative defense and the ∆’s burden of proof on causation established by the Court in that case. The ∏ who establishes that the challenged employment decision was at least in part motivated by unlawful bias has proved a violation § 703 and will be entitled at least to some relief. In the face of such a finding, the employer who establishes that it would have been made the same decision absent unlawful motivation escapes the most concrete kinds of remedies.
e.       After the passage of the 1991 Act, the Courts of Appeals were divided over whether a ∏ must prove by direct evidence that an impermissible consideration was a motivating factor in an adverse employment decision. The Supreme Court resolved this issue in Desert Palace, Inc. v. Costa.
3.      Desert Palace, Inc. v. Costa: A ∏ is not required to present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as mended by the Civil Rights Act of 1991.
Rationale: § 2000e-2(m) unambiguously states that a ∏ need only demonstrate that an employer used a forbidden consideration with respect to any employment practice. On its face, the statute does not mention, much less require, that a ∏ make a heightened showing through direct evidence. Moreover, Congress explicitly defined the term “demonstrates” in the 1991 Act, leaving little doubt that no special evidentiary showing is required. In addition, Title VII’s silence with respect to the type of evidence required in mixed-motive cases also suggests that we should not depart from the conventional rule of a civil litigation that generally applies in Title VII cases. That rule requires a ∏ to prove his case by a preponderance of the evidence using direct or circumstantial evidence.
4.      Issues left unresolved after Desert Palace:
a.       Will not the typical disparate treatment case that makes it past summary judgment involve evidence of both legitimate and unlawful motives? And if that is the case will not the typical disparate treatment case call for a mixed-motive instruction? Can you imagine a case where there is evidence that would allow a reasonable jury to either believe or disbelieve the employer’s explanation in which a mixed-motive instruction would not be appropriate?
b.      In Desert Palace J. Thomas cautions that the Court was not required to decide