July 8, 2008

Late last week, the Sixth Circuit issued a decision abandoning the use of the McDonnell Douglas burden-shifting framework in “mixed motive” Title VII cases. In White v. Baxter Healthcare Corporation, the plaintiff, an African American sales representative, claimed that he was wrongfully denied a promotion because of race and given a poor performance evaluation based, in part, on race.

The court first reviewed White’s failure to promote claim under the McDonnell Douglas framework, scrutinizing the employer’s business judgment in its subjective comparison of White with the other candidates. The court concluded that “the evidence presented could lead a jury to doubt the reasonableness of Baxter’s decision . . . and thereby to infer that some other impermissible motivation – such as White’s race – guided the employment decision.”

The court then evaluated White’s poor performance evaluation claim using a mixed-motive analysis. The court observed variations in how other circuits have used the McDonnell Douglas analysis to evaluate mixed-motive claims at summary judgment, but ultimately decided to cut its own path by completely abandoning McDonnell Douglas in mixed-motive cases. Instead, the court articulated the following standard: “To survive a defendant’s motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) ‘race, color, religion, sex, or national origin was a motivating factor’ for the defendant’s adverse employment action.” The court emphasized that "a plaintiff can win simply by showing that the defendant's consideration of a protected characteristic 'was a motivating factor for any employment practice, even though other factors also motivated the practice."

This case intensifies the conflict among the circuits as to the proper analysis for evaluating mixed motive claims under Title VII, and may result in an effort for an en banc review, or a possible writ of certiorari to the Supreme Court. In the interim, the case serves to highlight the risks to employers who rely too heavily on subjective criteria when making employment decisions.