This week the Eight Circuit Court of Appeals issued a decision in Gross v. FBL Financial Services, No. 07-1490 (8th Cir. May 14, 2008), ignoring the Supreme Court's opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
The issue has to do with the question of whether so-called "direct evidence" is still required in order to obtain a "mixed-motive" jury instruction. The direct evidence standard was formulated by Justice O'Connor in her Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) concurring opinion. Following Price Waterhouse, many circuits adopted this stricter standard of proof.
In 1991, Congress amended Title VII to specifically provide for a mixed-motive rule. In Desert Palace, the Court, including Justice O'Connor, clearly indicated that the distinction between requiring direct evidence (rather than circumstantial evidence) of discrimination prior to allowing a mixed-motive jury instruction was nonsensical. The Court stated:
"The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence'"
Inexplicably, the Eighth Circuit goes out of its way to parse words with the Supreme Court and ignore the obvious intent of Desert Palace:
"The Court in Desert Palace declined to address which opinion in Price Waterhouse was controlling, 539 U.S. at 98, or to revisit Price Waterhouse's interpretation of a statute, unadorned by § 2000e-2m, that prohibits discrimination "because of" an enumerated factor. Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable."
The Eight Circuit is militantly wrong on this one. This decision creates a clear split in the circuits (See Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004)) so perhaps the Supreme Court will take the opportunity to make this point even more clearly than they did in Desert Palace. (Hard to see what they could do in this regard short of issuing an opinion in picture form.)