by Michael Fox
Although the 1991 amendments to the Civil Rights Act introduced the concept of a "mixed motive" standard for finding liability, and its complementary affirmative defense, the so called "same action" defense, trial courts have rarely dealt with such issues in part because until the Supreme Court's decision in Desert Palace, Inc. v. Costa, 123 S. Ct. 2148, 2151 (2003) such cases required "direct evidence," which the courts had interpreted in a very restrictive manner. But now trial courts are beginning to wrestle with just how such issues will be worked out on matters like a jury charge.
The D.C. Circuit had the chance to review such a effort in Porter v. Natsios (D.C. Cir. 7/1/05) [pdf]. Unfortunately, because of the way it was handled in the trial court, there were more questions left unanswered than resolved. Although it is not clear that it was intended this way, the jury answered what the appeals court determined was a mixed motive issue (motivating factor) favorably for the plaintiff, finding that retaliation was part of the motive. However, at the request of the defendant, the District Court found that the employer would have taken the same action notwithstanding the impermissible motive, which restricts the remedies available to the otherwise prevailing plaintiff.
The plaintiff objected arguing that such a determination should be made by the jury, not the court. It was an argument that seemed to have considerable merit, except for the fact that the plaintiff had objected to the submission of such an issue to the jury when offered by the defendant. As the Court noted, "having chosen to prove liability under the less onerous standard of § 2000e-2(m), Porter cannot now disavow that choice to avoid facing a “same-action” response to his request for equitable relief." So, left unanswered is whether or not the "same action" affirmative defense must be decided by a jury. While technically unanswered, but I think it is pretty clear that is where it should be decided.
The Court also seemed poised to join what it deemed "every circuit court to address the issue" in finding that the mixed motive provisions of the 1991 Act do not apply to retaliation cases. Unfortunately, neither party raised that issue, so it too remains an open question in the D.C. Circuit. Again, although not answered in a formal sense, it seemed unlikely that this panel would have differed from "every [other] circuit court" to consider that issue.