The Journal of The DuPage County Bar Association

Back Issues > Vol. 20 (2007-08)

Northern's Exposure

A Splitting of (Gray) Hairs: the Implications of Desert Palace v. Costa for the Age Discrimination in Employment Act
by Bradley R. Tengler

Desert Palace v. Costa1 has been marked as a surprising development in employment law because a decidedly pro-plaintiff interpretation of the 1991 amendment (the "Amendment") to Title VII of the Civil Rights Act (the "CRA") was unanimously upheld by the Supreme Court.2 In this mixed-motive, gender discrimination case, the Court held that "In order to obtain [a jury] instruction under § 2000e-2(m) [of Title VII] a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’"3 For some, this has represented a "revolution" in Title VII litigation.4 The holding reaffirmed the established standard of causation in most mixed-motive, Title VII cases by requiring plaintiffs to only prove that a characteristic protected by the Amendment was a motivating factor for an adverse employment action, not just a substantial or determinative factor.5 It also permitted plaintiffs to use circumstantial evidence, not just direct evidence, as proof of discrimination in these cases6 unlike the holdings of many circuits.7

In contrast, there has been comparatively little discussion regarding the implications of Desert Palace for mixed-motive claims brought under the Age Discrimination in Employment Act (the "ADEA").8 This article contends that the holding in Desert Palace bears on the interpretation of the ADEA. Its applicability, however, is limited. Because of the nature of the reasoning of the Court in Desert Palace, 9 ADEA plaintiffs should also be afforded the use of circumstantial evidence in mixed-motive cases. Since the ADEA has not been amended like Title VII,10 however, ADEA plaintiffs should be required to prove that age was a determinative or substantial factor for the employer’s decision, not just a motivating one.11 Likewise, mixed-motive ADEA plaintiffs should not be entitled to any relief when the employer persuades the jury that it would have made the same decision for legitimate reasons – even if the employer was motivated in part by discriminatory animus – since the language of the ADEA does not afford the same protections as does the Amendment.12

The Implications of Desert Palace for Mixed-Motive, ADEA Claims. The Court in Desert Palace did not indicate what the implications of its holding were for other employment discrimination statutes like the ADEA.13 Thus, in as much as the court’s findings in Desert Palace are based on the Amendment,14 the first issue that must be addressed to determine whether Desert Palace is applicable to mixed-motive, ADEA claims is whether the Amendment is applicable to the ADEA. Second, if the Amendment is not applicable to the ADEA, the relationship between Price Waterhouse v. Hopkins and the ADEA must be defined since Price Waterhouse was the controlling Supreme Court opinion for all mixed-motive cases before the Amendment was enacted.15 Third, if Price Waterhouse is controlling for mixed-motive ADEA cases, one must determine which opinion in Price Waterhouse is applicable since Price Waterhouse contains no majority opinion.16 Lastly, one must consider whether Desert Palace is nevertheless partially relevant to the ADEA if the reasoning in the case is not based on the Amendment or is based on language that is substantially similar to the ADEA.17

The Inapplicability of the Amendment to the ADEA. The Amendment is not applicable to the ADEA because it can be inferred from the reasoning of various Supreme Court cases that it is not applicable. For instance, the standard of causation established by the Supreme Court in Hazen Paper Co. v. Biggins18 and Reeves v. Sanderson Plumbing Products19 for ADEA cases is higher than the Amendment’s. In addition, the Court in Desert Palace did not extend its interpretation of the Amendment to other employment discrimination statutes like the ADEA.20 Furthermore, in Raytheon Co. v. Hernandez, a case involving a claim brought under the Americans with Disabilities Act (the "ADA"), the Supreme Court did not indicate that the Amendment was applicable to the ADA, an act containing causal language identical to the ADEA’s.21

Hazen Paper Co. v. Sanderson Plumbing Products, Inc. and Reeves v. Sanderson Plumbing Products, Inc. Supreme Court, ADEA cases before Desert Palace indicate that the Amendment is not applicable to the ADEA.22 For instance, in Hazen Paper the Court did not find that an ADEA plaintiff must only demonstrate that age was a motivating factor for an adverse employment action23 as required by the Amendment.24 Rather, it found that the plaintiff bore a two-fold burden of persuasion.25 Not only must the plaintiff demonstrate that the "protected trait actually played a role" in the employer’s decision-making process but also that it "had a determinative influence on the outcome."26 Thus, because the Court found that an ADEA plaintiff must demonstrate that age was a determinative factor, it can be inferred that the Court did not consider the Amendment to be applicable to the ADEA prior to Desert Palace27 since the Amendment only requires that plaintiffs demonstrate that age was a motivating factor for an employer’s decision.28

Admittedly, there has been debate about the implications of Hazen Paper.29 Some legal scholars have found that its determinative standard of causation is synonymous with but-for causation;30 others, that it is equivalent to a motivating factor standard.31 Arguments supporting the latter stem from the Hazen Paper Court’s failure to mention but-for causation,32 its rejection of the predominate factor test,33 the plurality’s rejection of but-for causation in Price Waterhouse,34 and the alleged incoherence that would result from imposing two different standards of causation in McDonnell Douglas and Price Waterhouse cases.35

There are tenable explanations for each of these arguments. For instance, in 1993 there were two standards of causation for Title VII plaintiffs depending upon whether the case involved a mixed-motive or McDonnell Douglas claim.36 However, perhaps what best explains why the Court described the standard of causation as determinative is the fact that the case involved an ADEA claim, not a Title VII one.37 Rather than relying upon the language of the Amendment,38 the court was solely relying upon the ADEA to establish the standard of causation in Hazen Paper.39 Unlike the ADEA, the Amendment requires "a motivating factor" standard of causation.40 The ADEA only prohibits discrimination "because of" an employee’s age.41 Like her concurrence in Price Waterhouse,42 O’Connor was interpreting "because" in Hazen Paper to indicate that there must be a causal relationship between the discriminatory motivation and the employer’s decision – though now she was writing for the majority of the court.43 Thus, by finding that ADEA plaintiffs must demonstrate that age was a "determinative factor," the Hazen Paper court was rejecting the applicability of the Amendment to the ADEA by adopting the standard of causation required by Price Waterhouse.44

Hazen Paper is not an isolated decision.45 Just three years before Desert Palace in another ADEA case, the Court rearticulated the identical standard of causation in Reeves.46 In Reeves, the court found that a jury may find that an employer engaged in intentional age discrimination when the plaintiff only produces sufficient evidence to demonstrate that the employer’s non-discriminatory reasons for its actions were pretextual47 and the record does not contain conclusive evidence of other non-discriminatory reasons.48 In so finding, the court implicitly upheld the jury instructions which only required the jury to find for the plaintiff if it found that age was more than just a motivating factor in the employer’s decision.49 For instance, the court found that because the jury was "plainly informed" that age must have been a "determinative and motivating" factor in the employer’s decision50 and that age discrimination was the "real reason" for the plaintiff’s discharge, there was no reason to remand the case to the court of appeals.51

Desert Palace and Raytheon. Although it could be argued that Hazen Paper and Reeves should not be used to comment on the inapplicability of the Amendment to the ADEA because the Amendment only applies to cases involving direct evidence of discrimination52 and because the plaintiffs in Hazen Paper and Reeves only produced circumstantial evidence,53 additional case law indicates otherwise. For instance, Desert Palace and Raytheon indicate that the Amendment is not applicable to the ADEA regardless of the type of evidence plaintiffs produce.54

Particularly, in Desert Palace the court does not mention the implications of the Amendment, if any, for the ADEA.55 Rather, its holding is narrow.56 After considering the effects of the Amendment for some Title VII claims, the court held that the Amendment permits plaintiffs to use circumstantial evidence to prove "that race, color, religion, sex, or national origin was a motivating factor for any employment practice."57 The court did not comment on whether the Amendment is applicable to age discrimination cases.58

Even more significantly, after Desert Palace the Supreme Court has not applied its findings regarding the Amendment to other employment discrimination statutes in which the causal language is identical to the ADEA’s.59 For instance, although the court in Raytheon was specifically addressing whether an ADA plaintiff could use disparate impact analysis to establish disparate treatment,60 the court had multiple reasons to comment on the impact of the Amendment for the ADA but chose not to. First, unlike the Amendment, the ADA does not explicitly require "a motivating factor" standard of causation.61 Like the ADEA, it only prohibits discrimination "because of" a protected characteristic.62 Moreover, like the plaintiff in Desert Palace, the plaintiff in Raytheon only produced circumstantial evidence of discrimination.63 However, Raytheon’s plaintiff proceeded under the McDonnell Douglas proof scheme without any indication from the court that the Amendment now permitted the plaintiff to prove his case under a mixed-motive framework.64 If the court considered the Amendment to be applicable to the ADA, it would certainly have taken the opportunity in Raytheon to comment on its applicability since the court could have resolved whether the Amendment establishes the standard of causation for the ADA and whether ADA plaintiffs could use circumstantial evidence in mixed-motive cases. Thus, in as much as it can be inferred from the silence of the court that the Amendment is not applicable to the ADA, it is equally likely that the Amendment is not applicable to the ADEA because the similarities between the ADEA and ADA raise the same questions about the nature of their relationship to the Amendment.65

The Significance of Price Waterhouse and Desert Palace for the ADEA. In as much as the Amendment is not applicable to the ADEA, the findings of Desert Palace based on the Amendment are equally not controlling for age discrimination claims. Rather, Price Waterhouse remains binding precedent for mixed-motive ADEA claims, like it has for retaliation,66 because age is not a characteristic protected by the Amendment67 and Desert Palace only "abrogated" the significance of Price Waterhouse for some Title VII claims.68 As such, ADEA mixed-motive plaintiffs should be required to present sufficient evidence to establish that age was a determinative factor for an employer’s decision, not a motivating factor.69 In addition, they should not be entitled to any relief when the employer demonstrates it would have made the same decision for legitimate reasons.70

The Standard of Causation and Conditions for Relief. The ongoing authoritative significance of Price Waterhouse for the ADEA, however, still leaves much unanswered. While it is reasonable to expect that significant legal differences may arise from whether the law is based on Price Waterhouse or the Amendment, Price Waterhouse contains no majority opinion.71 A plurality of four justices held that a plaintiff must only demonstrate that a protected characteristic played a motivating role in an employer’s decision.72 White and O’Connor found that gender must have played a substantial role.73 The three justices in dissent clearly required proof of but-for causation.74 In addition, O’Connor found that the plaintiff must produce direct evidence of discrimination.75

Moreover, Desert Palace provides little assistance.76 The Court specifically found that it was not necessary to address which opinion in Price Waterhouse was controlling since the Amendment, not Price Waterhouse, was applicable to cases involving claims based on characteristics protected by the Amendment.77 Age, however, is not afforded protection by the Amendment.78 Thus, which Price Waterhouse opinion is controlling remains a relevant issue that has been left unanswered by the Supreme Court for mixed-motive, ADEA claims.79

Price Waterhouse, however, can be read in such a way so as to establish a majority consensus about the minimum standard of causation for the ADEA.80 Despite the lower standard required by the plurality, the possibility of imposing liability upon the employer on remand was due to White and O’Connor’s concurrences.81 Had not O’Connor and White found that the employer’s decision was substantially motivated by the plaintiff’s gender a majority of the court would not have even considered whether the employer might be liable.82

In addition, granting limited relief to mixed-motive, ADEA plaintiffs when the employer has demonstrated it would have made the same decision regardless of its discriminatory motives is equally unjustifiable.83 Although the court in Price Waterhouse could not garner a majority about the standard of causation, it was in full consensus regarding conditions that must be satisfied for a plaintiff to be granted any relief.84 Both the plurality and concurring justices found that, if the employer proved on remand that it would have made the same decision for legitimate reasons, the employer would escape all liability.85 Likewise, the circuits have found after the Amendment was enacted that plaintiffs are not entitled to any relief when the employer prevails with a same decision defense in cases involving employment discrimination statutes like the ADEA because Price Waterhouse, not the Amendment, is applicable to those statutes.86 Thus, ADEA mixed-motive plaintiffs should also not be entitled to any relief if the employer succeeds with its affirmative defense.87 The Availability of Circumstantial Evidence. Unlike the standard of causation or conditions for granting relief, Price Waterhouse and subsequent Supreme Court and circuit court cases are less helpful clarifying whether direct evidence should still be required for ADEA, mixed-motive cases.88 Desert Palace, however, is. Despite the inapplicability of the Amendment to the ADEA, circumstantial evidence should be available for ADEA plaintiffs in mixed-motive cases due to the nature of the reasoning in Desert Palace.89 Largely, the court’s findings regarding the availability of circumstantial evidence are not based on the Amendment but rather on rules of evidence that are equally applicable to the ADEA.90 However, in as much as Desert Palace is based on the Amendment, its reasoning about circumstantial evidence is still applicable to the ADEA because, like the Amendment, the ADEA does not impose a heightened evidentiary burden upon its plaintiffs.91

The Applicability of Desert Palace’s Reasoning. The court in Desert Palace relied upon the statutory text of the Amendment and the rules of evidence in civil litigation and criminal cases to find that circumstantial evidence is available to plaintiffs in certain mixed-motive cases.92 In so doing, it first noted that the Amendment does not "mention, much less require, that a plaintiff make a heightened showing through direct evidence."93 Rather, the Amendment only requires that plaintiffs "demonstrate" that a protected characteristic was a discriminatory factor in an employer’s decision.94 The court also found that the Amendment defines what was meant by "demonstrates:" "to meet the burdens of production and persuasion."95

The court then finds that because the Amendment does not impose a heightened evidentiary requirement only the normal rules of evidence in civil litigation should apply since in the past "Congress has been unequivocal when imposing heightened proof standards."96 The rules of evidence only require plaintiffs to prove "a case by a preponderance of the evidence using direct or circumstantial evidence."97 To support its findings, the court cites previous Supreme Court precedent in which circumstantial evidence has been found to be more "certain, satisfying, and persuasive than direct evidence."98 The court also notes that the rules of evidence in criminal cases support its findings.99 In criminal cases, circumstantial evidence is used to establish a higher degree of proof than in civil litigation100 and juries are instructed not to distinguish between direct and circumstantial evidence.101

For the same reasons, circumstantial evidence should be available for ADEA plaintiffs in mixed-motive cases.102 Like the Amendment, the ADEA does not "mention or require" direct evidence of age discrimination.103 Thus, like cases brought under the Amendment, the normal rules of evidence in civil litigation should apply to the ADEA.104 Because the court in Desert Palace found that circumstantial evidence can be used in mixed-motive cases under the Amendment since the normal rules of evidence applied, circumstantial evidence should also be available to plaintiffs in mixed-motive ADEA cases.105

Implications for the Circuits’ Findings. In as much as the circuits have applied "a motivating factor" standard of causation to mixed-motive, ADEA cases or granted limited relief to plaintiffs even though the employer has prevailed with a same decision defense, they have misapplied Desert Palace to the ADEA.106 However, those circuits which have permitted ADEA plaintiffs to use circumstantial evidence in mixed-motive cases are justified.107 In particular, the reasoning of the Fifth Circuit exemplifies the applicability of Desert Palace to the ADEA in regards to circumstantial evidence.108 Like the court in Desert Palace regarding claims brought under the Amendment,109 the Fifth Circuit reasoned that because the ADEA is as silent as the Amendment regarding the type of evidence the plaintiff must produce and because the ADEA does not mandate a heightened evidentiary standard, plaintiffs should be able to use circumstantial evidence in mixed-motive cases.110 Because the same reasons that justified the court in Desert Palace to extend the use of circumstantial evidence to plaintiffs under the Amendment can be equally applied to the ADEA, the findings of those circuits which permit circumstantial evidence to be used by plaintiffs in mixed-motive ADEA cases are equally justified.111

Conclusion. The relationship of Desert Palace to the ADEA is complex. On the one hand, plaintiffs should be permitted to use circumstantial evidence in mixed-motive ADEA cases since the findings of Desert Palace regarding a plaintiff’s evidentiary burden are equally applicable to the ADEA.112 However, all ADEA plaintiffs should be held to a higher standard of causation and should not be granted any relief when the employer has prevailed with a same decision defense.113

For reasons that have not been explained, Congress chose not to amend the ADEA like it did Title VII. In as much as Congress and the American people feel that age is as deserving of protection as race, color, religion, sex, or national origin, Congress should amend the ADEA. Until the ADEA is amended, however, it appears that the hands of the courts should be statutorily tied. While Desert Palace may afford plaintiffs the use of circumstantial evidence to establish a mixed-motive claim under the ADEA, the Amendment does not lower the standard of causation for the ADEA or entitle ADEA plaintiffs to relief when an employer has demonstrated that it would have made the same decision for legitimate reasons.114

1 539 U.S. 90 (2003).

2 Michael J. Zimmer, The New Discrimination Law: Price Waterhouse is Dead, Whither McDonnell Douglas?, 53 Emory L.J. 1887, 1888-89 (2004); see also Desert Palace, 539 U.S. 90.

3 Desert Palace, 539 U.S. at 101.

4 Jeffrey A. Van Detta, Requiem for a Heavyweight: Costa as Countermonument to McDonnell Douglas – A Countermemory Reply to Instrumentalism, 67 Alb. L. Rev. 965, 966 (2004); see also William Corbett, An Allegory of the Cave and the Desert Palace, 41 Hous. L. Rev. 1549, 1552-55 (2005) (using platonic imagery to depict the holding of Desert Palace as a sun needed to enlighten cave-dwellers who are legal scholars who fail to grasp its implications).

5 Desert Palace, 539 U.S. at 96, 101 (citing Costa v. Desert Palace 299 F.3d 838, 858 (9th Cir. 2002)). In Desert Palace, after the jury found for the plaintiff, it then considered the defendant’s affirmative defense. Id. at 96-97. Because the jury found that the defendant would not have treated the plaintiff similarly absent its discriminatory motivations, the jury awarded the plaintiff backpay, compensatory damages, and punitive damages. Id. at 97. Had the jury not found that the employer would have made the same decision, the court still could have granted other forms of relief. Id. at 95; see also 42 U.S.C. § 2000e-5(g)(2)(B). It provides in pertinent part:

On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and (ii) shall not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A). 42 U.S.C. § 2000e-5(g)(2)(B).

6 Desert Palace, 539 U.S. at 101.

7 Id. at 95 (citing, e.g., Mohr v. Dustrol, Inc., 306 F.3d 636, 640-641 (8th Cir. 2002)); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F.3d 1449, 1453-1454 (11th Cir. 1996); Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)).

8 See Zimmer, supra note 3, at 1921, n. 151.

9 See Desert Palace, 539 U.S. at 98-101. The court’s reasoning is applicable to the ADEA because it is not based on the language of the Amendment or, in as much as it is, it is equally applicable to the ADEA. Id; see also infra, section III, B.

10 The reason for the difference in the standard of causation between Title VII and ADEA cases is tied directly to the language of the acts. The ADEA prohibits the employer from discriminating against older employees "because of" their age. 29 U.S.C. § 623(a). Title VII contains additional amended language requiring the plaintiff only to demonstrate that an illegitimate factor was "a motivating factor" to establish an unlawful employment practice. 42 U.S.C. § 2000e-2(m).

11 See Reeves v. Sanderson Plumbing Products, Inc, 530 U.S. 133, 141, 153 (2000); Hazen Paper Co. v. Biggins, 540 U.S. 604, 610 (1993); Price Waterhouse v. Hopkins, 490 U.S. 228, 276-79 (1989) (O’Connor concurring).

12 42 U.S.C. § 2000e-5(g)(2)(B) imposes liability upon employers who violate the Amendment even if the employer proves that it would have made the same decision for legitimate reasons. See supra, note 4. The ADEA does not. 42 U.S.C. § 621-34.

13 See Desert Palace, 539 U.S. at 101.

14 Id. at 98-101.

15 See generally Price Waterhouse, 490 U.S. 228 (1989); see also Zimmer, supra note 3, at 1909-12.

16 See generally Price Waterhouse, 490 U.S. 228.

17 See Desert Palace, 539 U.S. at 98-101.

18 See 507 U.S. at 610.

19 See 530 U.S. at 141, 153.

20 Desert Palace, 539 U.S. at 101.

21 See generally 540 U.S. 44 (2003). Like the ADEA in regards to age, the ADA prohibits discrimination "because of" an employee’s disability. 42 U.S.C. § 12112(a).

22 See generally Reeves, 530 U.S. 133; Hazen Paper, 507 U.S. 604 (1993).

23 See Hazen Paper, 507 U.S. at 610.

24 See 42 U.S.C. § 2000e-2(m) (Retaliation, of course, excepted).

25 Hazen Paper, 507 U.S. at 610.

26 Id. (emphasis added).

27 Id.

28 See 42 U.S.C. § 2000e-2(m).

29 Zimmer, supra note 1, at 1923-24 (discussing the standard of causation after Price Waterhouse was not "sole cause" but rather, but-for cause or determinative influence); but see Kenneth R. Davis, Price-Fixing: Refining Price Waterhouse Standard and Individual Treatment Law, 31 Fla. St. U. L. Rev. 859, 865-67 (2004), (stating that jurists and scholars alike have mistakenly interpreted Hazen Paper to require but-for causation in McDonnell Douglas cases since the court in Hazen Paper did not require the plaintiff to prove that discriminatory motive was the predominate cause).

30 E.g., Zimmer, supra note 3, at 1923-24.

31 Davis, supra note 30, at 896-99.

32 Id. at 896.

33 Id. at 897.

34 Id. at 899.

35 Id.

36 Davis’s argument that the Court’s rejection of the predominate factor test signifies its acceptance that the determinative influence and motivating factor tests are equivalent is not convincing. See Davis, supra note 30, at 897. One could imagine a determinative influence that is the but-for cause of an adverse employment action even though it is not the predominate cause. In addition, the plurality opinion in Price Waterhouse was not controlling. Five justices in Price Waterhouse– three in dissent, two concurrences – required at least substantial factor causation. See Price Waterhouse, 490 U.S. at 258, 259, 276. A more plausible explanation is that Hazen Paper’s determinative factor standard of causation reflects a compromise between the concurrence and dissent in Price Waterhouse, particularly since O’Connor wrote the majority opinion in Hazen Paper. See id.

37 See generally Hazen Paper, 507 U.S. 604.

38 As demonstrated by the fact that the court never cites the Amendment.

39 Seven years later, in another ADEA case the court cites the causal language of the ADEA before finding that that the plaintiff must establish that age was a determinative influence. See Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 141 (2000).

40 42 U.S.C. § 2000e-2(m).

41 42 U.S.C. § 621(a)(1).

42 Price Waterhouse, 490 U.S. at 262, 277-78.

43 See Hazen Paper, 507 U.S. at 610.

44 See id.

45 See generally Reeves, 530 U.S. 133.

46 Id. at 141.

47 Id. at 140

48 Id. at 148.

49 See id. at 153.

50 Id.(emphasis added).

It should not go without mention that previously in the case the Court cited a part of the jury instructions which describes the plaintiff’s burden as proving that age was a "determinative or motivating factor" Id. at 138 (emphasis added). However, when finding that there was no reason to subject the parties to further litigation, the court cited that part of the instructions which informed the jury that the plaintiff must show that age was a "determinative and motivating factor" and that age was the "real reason" for the plaintiff’s discharge. Id. at 153 (emphasis added).

51 Id. at 153.

52 See Desert Palace, 539 U.S. at 95 (citing, e.g., Mohr v. Dustrol, Inc., 306 F.3d 636, 640-641 (8th Cir. 2002)); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F.3d 1449, 1453-1454 (11th Cir. 1996); Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995))); see also Zimmer, supra note 3, 1911-12.

53 See generally Reeves, 530 U.S. 133 (2000) (specifically addressing circumstantial evidence under a McDonnell Douglas framework); Hazen Paper, 507 U.S. 604 (1993) (addressing only indirect evidence but making no mention of McDonnell Douglas).

54 See generally Raytheon, 540 U.S. 44 (2003); Desert Palace, 539 U.S. 90 (2003).

55 Desert Palace, 539 U.S. at 101.

56 Id.

57 Id. (emphasis added).

58 Id.

59 See generally Raytheon, 540 U.S. 44 (2003).

60 Raytheon, 540 U.S. at 53.

61 42 U.S.C. § 12112(a).

62 Id.

63 See generally Raytheon, 540 U.S. 44.

64 Id. at 50-52.

65 See 42 U.S.C 621(a)(1); see also, e.g., Zimmer, supra note 1, 1921, note 151; Van Detta, supra note 6, at 1009 (implying that Raytheon may signify that Desert Palace has a more limited reach for ADA and ADEA claims than for Title VII ones).

66 McNutt, 141 F.3d. at 709.

67 42 U.S.C. 2000e-2(m).

68 Desert Palace, 539 U.S. at 97-98; see also Zimmer, supra note 3, at 1921, n. 151 (alluding to the possibility that, while Price Waterhouse is "dead" for Title VII claims, it may not be for the ADEA).

69 See Reeves, 530 U.S. at 141, 153; see also Price Waterhouse, 490 U.S. at 277-79 (O’Connor concurring).

70 Price Waterhouse, 490 U.S. at 258; see also McNutt, 141 F.3d at 708-09.

71 See generally Price Waterhouse, 490 U.S. 228; see also supra, section II, B.

72 Desert Palace, 539 U.S. at 93. (citing Price Waterhouse, 490 U.S. at 258).

73 Id. (citing Price Waterhouse, 490 U.S. at 259, 276).

74 Price Waterhouse, 490 U.S. at 281-82 (Kennedy, J., dissenting); see also Lewis, supra note 37.

75 Desert Palace, 539 U.S. at 94 (citing Price Waterhouse, 490 U.S. at 276).

76 See id. at 97-98.

77 See id. at 98.

78 See 42 U.S.C. 2000e-2(m).

79 See Desert Palace, 539 U.S. at 97-98.

80 See generally Price Waterhouse, 490 U.S. 228.

81 See id. at 259-60, 277-79.

82 See id. On remand, the court also had to determine that the employer would not have made the same decision for the employer to be liable. Id. at 258.

83 Price Waterhouse, 490 U.S. at 258; see also McNutt, 141 F.3d at 708-09.

84 Price Waterhouse, 490 U.S. at 258, 260, 279-80.

85 Id. at 258, 260, 279.

86 See McNutt, 141 F.3d at 708-09; see also supra, section III, A, 2.

87 See Price Waterhouse, 490 U.S. at 258; McNutt, 141 F.3d at 708-09.

88 See Zimmer, supra note 1, at 1921, n. 151 (alluding to the possibility that, while Price Waterhouse is "dead" for Title VII claims, it may not be for the ADEA).

89 Desert Palace, 539 U.S. at 98-101.

90 Id.

91 Id.

92 Desert Palace, 539 U.S. at 98-101.

93 Id. at 98-99; see also generally 42 U.S.C. 2000e-2.

94 Desert Palace, 539 U.S. at 99; see also 42 U.S.C. 2000e-2(m).

95 Desert Palace, 539 U.S. at 99; see also 42 U.S.C. 2000e-(m).

96 Desert Palace, 539 U.S. at 99.

97 Id. (citing Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714, n. 3, (1983)).

98 Id. at 100 (citing Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n.17 (1957).

99 Id.

100 Id. (citing Holland v. United States, 348 U.S. 121, 140 (1954)).

101 Id. (citing 1A K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed.2000)).

102 Desert Palace, 539 U.S. at 98-101.

103 See generally 42 U.S.C. 621-34.

104 See id. at 99-101.

105 See id.

106 See, e.g., Machinchick v. PB Power, 398 F.3d 345, 352 (5th Cir. 2005); see also supra, section III, B, 1.

107 Id.

108 Id.; see also Rachid, 376 F.3d at 310-313.

109 Desert Palace, 539 U.S. at 98-101.

110 Rachid, 376 F.3d at 310-313.

111 See Desert Palace, 539 U.S. at 98-101; Rachid, 376 F.3d at 310-313.

112 Desert Palace, 539 U.S. at 98-101.

113 See Reeves, 530 U.S. at 141, 153 (citing Hazen Paper, 540 U.S. at 610); Price Waterhouse, 490 U.S. at 258, 277-79; McNutt, 141 F.3d at 708-09.

114 See Desert Palace, 539 U.S. at 98-101; Reeves, 530 U.S. at 141, 153 (citing Hazen Paper, 540 U.S. at 610); Price Waterhouse, 490 U.S. at 258, 277-79; McNutt, 141 F.3d at 708-09.

Bradley R. Tengler is a law student at Northern Illinois University College of Law; B.A., where he is expected to graduate in May, 2009.  He received his undergraduate degree from Northeastern Illinois University in 2002.


 
 
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