Mixed-Motive Theory, Reverse Discrimination, Similarly Situated Individuals

Illinois recognizes the mixed-motive theory of discharge in retaliatory discrimination cases, a theory which shifts the burden of proof to the employer. Both federal and state, clearly indicates that Illinois does recognize the mixed-motive theory. Moreover, shifting the burden of proof to the employer was not only proper but one of this theory's most unique tenets.

The Illinois Supreme Court analyzed employment discrimination causes brought under the Illinois Human Rights Act according to the "framework set forth in United States Supreme Court decisions addressing claims under Title VII of the Civil Rights Act of 1964." Lalvani v. Illinois Human Rights Comm'n, No. 1-99-3283, slip op. at 26 (July 31, 2001) (our Supreme Court, in Zaderaka, 131 Ill. 2d at 178, adopted the Supreme Court's method of analysis); Livingston, 302 Ill. App. 3d at 152. The principal case laying down this framework is Price Waterhouse v. Hopkins, 490 U.S. 228, 260-61, 104 L. Ed. 2d 268, 295, 109 S. Ct. 1775, 1796 (1989) (O'Connor, J., concurring).

Price Waterhouse originally was a Title VII action with the plaintiff-employee offering specific evidence that gender animus was a motivating, and forbidden, reason in the defendant-employer's decision to terminate her employment. It was in this case that the Court recognized two separate and entirely different methods available to analyze retaliatory discharge cases. The more common method is the three-part pretext analysis as established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

Under this analysis the plaintiff-employee must first establish a prima facie case, a modest burden since he may do so using indirect evidence. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 677, 93 S. Ct. at 1824. Second, the burden of production, but not of persuasion, shifts to the defendant-employer to articulate, not prove, a legitimate, nondiscriminatory reason for discharge. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 678, 93 S. Ct. at 1824. If the defendant succeeds, the plaintiff must then show that the defendant's reason was merely a pretext or sham. McDonnell Douglas, 411 U.S. at 804, 36 L. Ed. 2d at 679, 93 S. Ct. at 1825.
To this end, the plaintiff retains the ultimate burden of persuasion at all times under the pretext method. Fernandes v. Costa Brothers Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999).

The Court recognized an equally effective method, called the mixed-motive theory, which a plaintiff may use in trying to convince the trier of fact that his employer used an impermissible criterion in discharging him. Under this two-part analysis, the plaintiff must first show, through direct proof, that the illegitimate factor had a motivating or substantial role in the employment decision. Price Waterhouse, 490 U.S. at 244, 104 L. Ed. 2d at 284, 109 S. Ct. at 1787. The plaintiff who accomplishes this will prevail, unless his employer can prove that it would have reached the same decision (i.e., still would have fired the plaintiff) had it not considered the impermissible factor. Price Waterhouse, 490 U.S. at 244-45, 252, 104 L. Ed. 2d at 284, 289, 109 S. Ct. at 1787-88, 1792 (legitimate reason "was present" at time of making decision and, "standing alone, would have induced [employer] to make the same decision").

The mixed-motive method differs from the pretext analysis in several respects. Initially, the mixed-motive method can be more difficult for the plaintiff to use. Fernandes, 199 F.3d at 580 (mixed-motive method is restricted to cases where the employee "can demonstrate with a high degree of assurance" that both legitimate and illegitimate reasons were involved); Tyler, 958 F.2d at 1180-81 (burden on the plaintiff is higher in mixed-method approach than pretext approach). Employment discrimination can oftentimes exert itself in subtle ways. Fernandes, 199 F.3d at 580. Yet to use the mixed-motive method, the plaintiff must show " 'direct evidence that decision makers placed substantial negative reliance on an illegitimate criterion in reaching their decision.' " Fernandes, 199 F.3d at 580, quoting Price Waterhouse, 490 U.S. at 277, 104 L. Ed. 2d at 305, 109 S. Ct. at 1805 (the availability of the mixed-motive analysis depends on quality of the plaintiff's evidence).

However, if the plaintiff can present this "more focused proof of discrimination," his cause becomes easier, as he sheds the burden he would otherwise retain under the pretext approach. Tyler, 958 F.2d at 1185-86. And this is why the approach used has an important effect: in the mixed-motive analysis, the burden of persuasion completely shifts away from the plaintiff and to the employer to prove it still would have fired the plaintiff absent consideration of the impermissible motive. Thomas v. National Football League Players Ass'n, 131 F.3d 198, 203 (D.C. Cir. 1997) (this is both a shifting of the ultimate burden of persuasion and the employer's affirmative defense).

Moreover, whereas there is only either lawful or unlawful motivation for discharge in pretext cases, there can be both types in mixed-motive cases. Ostrowski v. Atlantic Mutual Insurance Cos., 968 F.2d 171, 185 (1992). Therefore, the plaintiff is not obligated to show that a legitimate reason was the true reason for discharge or that the employer used a pretext. Ostrowski, 968 F.2d at 185. All he must show is that the employer considered some unlawful motive in making its decision.

Illinois state courts, and most critically our very bench, have clearly and consistently recognized what the federal courts have, that the mixed-motive method of analyzing and deciding adverse employment claims is alive and well. Lalvani, slip op. at 26-27 (the "burden of proof is different if the plaintiff proceeds under the direct-evidence approach"); Livingston, 302 Ill. App. 3d at 152 (recognizing two ways an employee may prove discrimination: through presenting direct or indirect evidence); Kenall, 152 Ill. App. 3d at 701 (same); Southern Illinois Clinic, Ltd. v. Human Rights Comm'n, 274 Ill. App. 3d 840, 847 (1995) (same). We have chosen to call this method by an alternative name at times--the dual-motive theory--but its tenets are still the same. City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d. 335, 347 (1989); Board of Education, 247 Ill. App. 3d at 460.

And as mentioned above, we too have noted that while the pretext method is more common, the mixed-motive method is no less viable. Southern Illinois Clinic, 274 Ill. App. 3d at 847.Just as in federal law, we have defined mixed-motive cases as those where the employer relies on both legitimate and illegitimate reasons for the employee's discharge. City of Burbank, 128 Ill. 2d at 346-47 (case where the employer advances and relied upon legitimate reasons for discharge is analyzed under mixed-motive theory). The plaintiff-employee must present direct evidence that the defendant-employer considered an illegitimate factor, among others, in deciding to fire him. Board of Education, 247 Ill. App. 3d at 460-61 (the employee's evidence must go beyond inference of discrimination to establish "clear nexus" between impermissible factor and discharge). Once the employee establishes this, the burden of proof then shifts to the employer to show it would still have fired the employee even if it had not considered the illegitimate factor. City of Burbank, 128 Ill. 2d at 346-47; Board of Education, 247 Ill. App. 3d at 461.

The Illinois Supreme Court has set the foundation for one very important concept in the mixed-motive analysis. Again, the employer's motivation for firing the employee is the central issue in these cases. Motive is a question of fact. City of Burbank, 128 Ill. 2d at 345. EEOC v. Pipefitters Ass’n Local 597, 334 F.3d 656, 658 (7th Cir. 2003). To do so, plaintiff must show that (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well-being; and (4) there is a basis for employer liability. Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).

Reverse Discrimination and Similarly Situated Individuals

In Ineichen v. Ameritech (7th Cir. 2005) this court reports reverse discrimination claims arise where the decisionmakers are of the same sex or race as the alleged victim, see, e.g., Preston v. Wis. Health Fund, 397 F.3d 539 (7th Cir. 2005) The court explained the rationale for the heightened standard in Phelan v. City of Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003) and Mills v. Health Care Service Corp., 171 F.3d 450, 455-57 (7th Cir. 1999): “It is not surprising when women discriminate in favor of women any more than it is surprising when men discriminate in favor of men. But it is surprising, in many though not all cases, when men discriminate against men in favor of women.” Id. at 542 All though Preston involved reverse sex discrimination (male discriminating against male), the same rationale applies equally in other reverse discrimination cases (female discriminating against female, white against white, black against black). Preston also made clear, however, that the examples provided are not exclusive and that “the list is not a closed one.”

To satisfy the “similarly situated” prong of the prima facie case, an employee must be “directly comparable in all material respects.” Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir. 2004) This requires the plaintiff to show not only that the employees reported to the same supervisor, engaged in the same conduct, and had the same qualifications, but also show that there were no “differentiating or mitigating circumstances as would distinguish . . . the employer’s treatment of them.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000).