In The

Supreme Court of the United States




Decided June 9, 2003

Justice O’Connor, Concurring

Topic: Civil Rights*Court vote: 9–0
Note: No other Justices joined this opinion.
Citation: 539 U.S. 90 Docket: 02–679Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring.

I join the Court's opinion. In my view, prior to the Civil Rights Act of 1991, the evidentiary rule we developed to shift the burden of persuasion in mixed-motive cases was appropriately applied only where a disparate treatment plaintiff "demonstrated by direct evidence that an illegitimate factor played a substantial role" in an adverse employment decision. Price Waterhouse v. Hopkins, 490 U. S. 228, 275 (1989) (O'CONNOR, J., concurring in judgment). This showing triggered "the deterrent purpose of the statute" and permitted a reasonable factfinder to conclude that "absent further explanation, the employer's discriminatory motivation 'caused' the employment decision." Id., at 265.

As the Court's opinion explains, in the Civil Rights Act of 1991, Congress codified a new evidentiary rule for mixedmotive cases arising under Title VII. Ante, at 98-10l. I therefore agree with the Court that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury.

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