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Non-Determinative Discrimination, Mixed Motives, and the Inner Western New England University School of Law Digital Commons @ Western New England University School of Law Faculty Scholarship Faculty Publications 1986 Non-determinative Discrimination, Mixed Motives, and the Inner Boundary of Discrimination Law Sam Stonefield Western New England University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.wne.edu/facschol Part of the Civil Rights and Discrimination Commons Recommended Citation 35 Buff. L. Rev. 85 (1986) This Article is brought to you for free and open access by the Faculty Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact [email protected]. Non-Determinative Discrimination, Mixed Motives, and the Inner Boundary of Discrimination Law SAM STONEFIELD* Table of Contents I. INTRODUCTION • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 86 A. A Definition of Discrimination as Different Treat­ ment . 86 B. Two Types of Different Treatment . 89 C. Examples of Non-Determinative Discrimination . 90 1. Initially Determinative Discrimination . 91 2. Process Discrimination . 92 3. Language Discrimination . 92 4. Mixed Motive Discrimination . 92 D. Current Doctrine and the Underenforcement Prob­ lem . 93 E. Non-Determinative Discrimination and the Over- enforcement Problem............. 95 F. The Metaphor of the Inner Boundary of the Laws Against Discrimination . 96 II. THE DISCRIMINATORY OUTCOME CLAIM • • • • • • • • • • • 105 A. Methodology of Proof . 106 B. Causation . 112 C. Remedy . 123 III. THE NoN-DETERMINATIVE DisCRIMINATION CLAIM... 134 A. Initially Determinative Discrimination . 134 B. Process Discrimination . 147 C. Language Discrimination . 151 1. Fact-finding Difficulties . 159 2. Definition of Racial Statement . 160 * Professor of Law, Western New England College School of Law, A.B., 1967, Dartmouth College; J.D., 1971, Harvard Law School. 85 86 BUFFALO LAW REVIEW [Vol. 35 3. Construction of Statutory Terms ....... 160 D. Mixed Motive Discrimination ............... 161 1. Denial of Liability ................... 165 2. Determination of Liability on the Basis of the Substantial Factor Causation Standard 170 3. Determination of Liability on the Basis of the Non-Determinative Discrimination Ap­ proach ............................ 172 IV. CoNCLUSION 175 I. INTRODUCTION A. A Definition of Discrimination as Different Treatment hile none of the numerous statutes that proscribe discrimi­ W nation define the term "discrimination,"1 they do suggest at 1. Writing in I 966, then-Professor Sovern observed that there are "uncertainties in the very meaning of discrimination, a term the statutes do not define." M. SoVERN, LEGAL REsTRAINTS ON RACIAL DISCRIMINATION IN EMPLOYMENT 42-43 (1966). His observation, reit­ erated by courts in the ensuing years, remains true. The Supreme Court has noted that "Title VII does not define the term discrimination." Newport News Shipbuilding Co. v. EEOC, 462 U.S. 669, 676 (1983). With respect to Title VI, 42 U.S.C. § 2000d (1982), the Court has recognized that the term "discrimination" is inherently ambiguous, Guardians Ass'n. v. N.Y. Civil Serv. Comm'n, 463 U.S. 582,592 (1983), and is "susceptible of varying interpretations." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 284 (1978). In Balli, Justice Powell quoted an observation ofJustice Holmes in order to describe the concept of discrimination: "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used." Bakke, 438 U.S. at 284 (quoting Town v. Eisner, 245 U.S. 418, 425 (1918)). State statutes are similarly general. See, e.g., CAL Gov'T CoDE § 12940 (West Supp. 1986); MICH. CoMP. LAWS ANN.§ 37.2202 (West 1985). Those statutes that do attempt a definition provide instead a tautology, ILL ANN. STAT. ch. 68, § I-103(Q) (Smith· Hurd Supp. 1985) ("'Unlawful discrimination' means discrimination against a person be· cause of his or her race ...."),or a synonym, MINN. STAT. ANN.§ 363.01(1) (West Supp. 1985) ("[D]iscriminate includes segregate or separate •..."). See generally Bonfield, The Substance ofAmerican Fair Employment Practice Legislation 1: Employees, 61 Nw. U.L. REV. 907 (1967). The oldest statutes, the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 & 1982 (1982), do not use the term discrimination and more clearly specify the right estab­ lished by the law. The statutes give "[a]ll persons" or "[a]ll citizens" the same identified right "as is enjoyed by white citizens." See 42 U.S.C. §§ 1981 & 1982 (1982). Even these more specific descriptions, however, have required extensive elaboration by the courts. See, e.g., General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982). See generally Brown, Givelber & Subrin, Treating Blacks as if They Were White: Problems of Dtjinition and Proof in Section 1982 Cases, 124 U. PA. L. REv. 1 (1975). Professor Jones' recent comment on Title VII provides an apt summary of all the laws against discrimination: The[ir] general terms of definition use the concept of discrimination in defining 1986] NON-DETERMINATIVE DISCRIMINATION 87 least one meaning. Their operative language typically provides that it shall be unlawful to "discriminate" "because of'2 race and other specified criteria.3 Using the generally accepted definitions discrimination. Inevitably under such circumstances, it is the process of admin­ istration that must give content to the terminology. Title VII adjudication is largely still concerned with establishing the metes and bounds of the law, in­ cluding the legal content of the concept 'discrimination.' Jones, Some Recollections on Title VII of the Civil Rights Act of 1964 at Twenty, 36 MERCER L. REV. 8I3, 823 (1985). 2. Title VII uses the standard "because of' terminology, 42 U.S.C. §§ 2000e-2(a)(l), (2) (I982), as do many of the other laws against discrimination. See, e.g., 29 U.S.C. §§ 623(a)(I), (2) (1982) (Age Discrimination in Employment Act). Some statutes use slightly different language: the Equal Pay Act, 29 U.S.C. § 206(A)(l) (1982) prohibits unequal pay "on the basis of sex"; the federal public accommodation statute, 42 U.S.C. § 2000a-l (1982) and the Revenue Sharing Act, 31 U.S.C. § 6716(a) (1982), forbid discrimination "because of race ... .'' 42 U.S.C. § 2000a-l (I982); 31 U.S.C. § 6716(a) (1982). Title VIII uses three different causal connectors in the same statute: "because ·of," 42 U.S.C. § 3604(a), (b), (d),§ 3605, § 363l(a) (1982); "based on," 42 U.S.C. § 3604(c) (1982); and "on account of," 42 U.S.C. §§ 3606, 3617, 363l(b) (1982). "No Court has yet indicated that any significance is to be attached to these variations in the way Title VIII expresses its 'because of requirement." R. SCHWEMM, FAIR HOUSING LAW 48 n.29 (1983). 3. This Article will use the statutory prohibitions against race discrimination as the primary basis for the presentation of non-determinative discrimination. Each statute identi­ fies the criteria which it is unlawful to use. Some statutes forbid only one type of discrimi­ nation: See, e.g., Title VI, 42 U.S.C. §§ 2000d to 2000d-6 (1982) (prohibiting only race discrimination); the Equal Pay Act, 29 U.S.C. § 206(d) (1982), and Title IX, 20 U.S.C. §§ 1681-1686 (1982) (proscribing only sex discrimination); and the Age Discrimination in Em­ ployment Act, 29 U.S.C. §§ 621-634 (1982) (barring only age discrimination). The Reha­ bilitation Act of 1973, 29 U.S.C. §§ 701-794 (1982 & Supp. 1984), is a single-criterion statute in the sense that it prohibits only discrimination on the basis of handicap. 29 U.S.C. §§ 791-794a (1982 & Supp. 1985). However, the definition of"handicapped individual" is broad and varied. See 29 U.S.C. §§ 706(7), 791-794a (1982 & Supp. 1985); Affirmative Action Obligations of Contractors and Subcontractors for Handicapped Workers, 4I C.F.R. §§ 60-741 (1985); Wegner, The Anti-Discrimination Model Reconsidered: Ensuring Equal Opportunity With Respect to Handicap Under§ 504 of the Rehabilitation Act of 1973, 69 CORNELL L. REV. 401 (1984). Usually, a statute makes unlawful several types of discrimination, most typically race, color, religion, sex and national origin. The discriminatory use of these categories is pro­ hibited by Title VII, 42 U.S.C. § 2000e-2 (1982), and a majority of state laws. There has been a trend toward expanding the protected classes. Some states now forbid discrimina­ tion on the basis of marital status or status as a welfare recipient. See, e.g., MASS. GEN. LAWS ANN. ch. 151B, § 4(10) (West 1982) (unlawful to discriminate against "recipient offederal, state or local assistance.''); N.Y. ExEC. LAw § 296(a) (McKinney 1983) (marital status). Cur­ rent federal bills would prohibit discrimination under Title VII against cancer victims. See H.R. 370, 99th Gong., 1st Sess., 131 GoNG. REc. HI04 (daily ed.Jan. 7, 1985); H.R. 1294, 99th Gong., 1st Sess., 131 CoNG. REc. Hl837 (daily ed. Apr. 2, 1985). Most statutes also prohibit retaliation against a person because he or she has filed a complaint, or assisted someone with a complaint. See, e.g., Title VII, 42 U.S.C. § 2000e-3(a)(l982); Title Vlll, 42 U.S.C. § 3631 (1982). For an example of truly omnibus protection, see D.C. CoDE ANN.§ 1­ 2501 (1981) (prohibiting discrimination based on, but not limited
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