The Golub Corporation v. Elaine Bart

This petition implicates both the Court’s employment discrimination framework announced over fifty years ago in McDonnell Douglas Corp. v. Green, 411 U.S. 791 (1973) as well as two provisions at the heart of the 1991 amendments to Title VII. The first provision, addressing “mixed motive” liability, provides that 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.” 42 U.S.C. § 2000e-2(m). The second–codifying the “same action” defense–provides that where a plaintiff proves a mixed motive violation and the employer demonstrates that it would have taken the same action in the absence of the impermissible motiving factor, the court may grant declaratory relief, injunctive relief and attorney’s fees and costs but not an award of damages, admission, reinstatement, hiring, promotion, or payment. Id. § 2000e-5(g)(2)(B). Against this backdrop, the Second Circuit–under the auspices of “demystifying” the mixed motive analysis in the context of the McDonnell Douglas framework on summary judgment–held that a plaintiff on summary judgment may, but need not, show at the third stage of the McDonnell Douglas analysis that the employer’s justification was pretextual. Alternatively, the plaintiff can satisfy her burden by demonstrating that even if the employer had a mixed motive (i.e., the justification was not pretextual), impermissible discrimination was at least a motivating factor in the employer’s adverse decision.