Clearing the Mixed-Motive Smokescreen: An Approach to Disparate Treatment Under Title VII

Part I of this Note describes the indirect-evidence inquiry of McDonnell Douglas and its basis in the policies underlying Title VII. Part II presents the various judicial treatments of cases where direct evidence is presented. These three major approaches reflect varying views of the burdens of proof regarding Title VII causation, and assume that the plaintiff has already shown some palpable level of discrimination. Part III describes Mt. Healthy City School District Board of Education v. Doyle, in which the Supreme Court first devised an approach to mixed motives. Although the Mt. Healthy analysis was developed for first amendment purposes, the Court has extended it to a number of different areas, such as equal protection and labor-management relations. The analysis also has provided a model for lower courts in Title VII cases because the Court has never ruled on the mixed-motive issue under Title VII, and because Mt. Healthy involved an employment dispute, like Title VII cases. Part IV explains the indeterminacy and unhelpfulness of the mixed-motive characterization, arguing that it obfuscates the critical inquiry into whether the employer intentionally discriminated against the plaintiff. The label ignores the fact that nearly every Title VII case is potentially a “mixed-motive” case, and that cases so labeled are simply those with facts that are not compelling in favor of either party. Finally, Part V proposes that the direct/indirect evidence approach is a superior method of analyzing the distinction between single- and mixed-motive cases, and suggests abandoning mixed-motive terminology altogether.