WEBVTT 00:00:00.000 --> 00:00:02.759 Welcome in. If you're joining us for this custom 00:00:02.759 --> 00:00:05.900 deep dive, we know exactly who you are. We really 00:00:05.900 --> 00:00:07.759 do. You are the learner. You're that person who 00:00:07.759 --> 00:00:11.660 wants to gain a thorough, nuanced understanding 00:00:11.660 --> 00:00:14.939 of the world. And you appreciate looking at complex 00:00:14.939 --> 00:00:18.000 issues from multiple angles. Right. You live 00:00:18.000 --> 00:00:19.739 for those aha moments where the puzzle pieces 00:00:19.739 --> 00:00:22.899 finally snap together. But, you know, you want 00:00:22.899 --> 00:00:25.420 to get there without drowning in dense academic 00:00:25.420 --> 00:00:30.109 information overload. Exactly. Imagine this. 00:00:30.250 --> 00:00:32.810 You catch a company red -handed making a discriminatory 00:00:32.810 --> 00:00:35.329 decision, but the legal system tells you that 00:00:35.329 --> 00:00:37.329 they don't owe you a single dime in damages. 00:00:37.590 --> 00:00:39.390 Seems completely contradictory, doesn't it? It 00:00:39.390 --> 00:00:41.509 really does. It sounds completely broken. But 00:00:41.509 --> 00:00:44.079 that paradox... is exactly what we are here to 00:00:44.079 --> 00:00:46.140 untangle today. And it really is a fascinating 00:00:46.140 --> 00:00:49.359 paradox. We are looking at a very specific, highly 00:00:49.359 --> 00:00:52.520 strategic corner of employment law under Title 00:00:52.520 --> 00:00:56.119 VII of the Civil Rights Act of 1964. Okay. It's 00:00:56.119 --> 00:00:57.880 a concept known as mixed motive discrimination. 00:00:58.479 --> 00:01:00.659 And the reason this is so relevant to you, as 00:01:00.659 --> 00:01:02.600 someone who studies how the world actually works, 00:01:02.820 --> 00:01:05.599 is that human decisions are almost never simple. 00:01:05.980 --> 00:01:08.799 I mean, that's just life, right? Exactly. We 00:01:08.799 --> 00:01:12.530 rarely do things for just one pure reason. The 00:01:12.530 --> 00:01:15.150 reality of the modern workplace is incredibly 00:01:15.150 --> 00:01:18.069 messy. So messy. Right. And the legal system 00:01:18.069 --> 00:01:20.689 has had to build some remarkably complex frameworks 00:01:20.689 --> 00:01:24.049 to handle that reality. The law can't just throw 00:01:24.049 --> 00:01:26.170 its hands up when a situation isn't black and 00:01:26.170 --> 00:01:29.209 white. OK, let's unpack this because. It sounds 00:01:29.209 --> 00:01:31.049 like we're dealing with a lot of gray area here. 00:01:31.150 --> 00:01:33.269 We absolutely are. Let's start by laying out 00:01:33.269 --> 00:01:35.530 the core definition of what we even mean by mixed 00:01:35.530 --> 00:01:37.450 motive. Sure. We're talking about situations 00:01:37.450 --> 00:01:40.489 where there is proven intentional discrimination 00:01:40.489 --> 00:01:46.569 in an employment decision. Say. a firing or a 00:01:46.569 --> 00:01:49.310 failure to promote. But the employer turns around 00:01:49.310 --> 00:01:52.290 and claims that they had a completely valid legal 00:01:52.290 --> 00:01:54.870 reason to make that exact same decision anyway. 00:01:55.069 --> 00:01:57.069 That's the crux of it. Picture a scenario where 00:01:57.069 --> 00:01:59.129 an employer clearly acts with discriminatory 00:01:59.129 --> 00:02:01.650 animus toward a protected class. Like based on 00:02:01.650 --> 00:02:05.420 race or gender or religion. Exactly. But simultaneously, 00:02:05.879 --> 00:02:08.199 that same employee was wildly underperforming 00:02:08.199 --> 00:02:10.719 or maybe they explicitly broke a major well -documented 00:02:10.719 --> 00:02:13.439 company policy. Right. So the employer's argument 00:02:13.439 --> 00:02:16.099 in court essentially becomes, yes, there was 00:02:16.099 --> 00:02:18.740 an illegitimate factor at play in our decision 00:02:18.740 --> 00:02:21.240 making process. But we would have fired this 00:02:21.240 --> 00:02:24.379 person regardless because of this other entirely 00:02:24.379 --> 00:02:26.939 legitimate factor. Let me jump in there because 00:02:26.939 --> 00:02:28.860 this is where the stakes get incredibly real 00:02:28.860 --> 00:02:31.710 for anyone involved in a lawsuit like this. According 00:02:31.710 --> 00:02:34.430 to these specific provisions in the Civil Rights 00:02:34.430 --> 00:02:39.849 Act, specifically 42 U .S .C. Section 2000E5G2, 00:02:40.050 --> 00:02:43.210 if the employer can demonstrate what is called 00:02:43.210 --> 00:02:46.389 a same -decision defense, they can completely 00:02:46.389 --> 00:02:49.110 avoid liability for money damages. That's the 00:02:49.110 --> 00:02:50.930 paradox we mentioned earlier. Right. And they 00:02:50.930 --> 00:02:52.930 only have to prove this by a preponderance of 00:02:52.930 --> 00:02:55.110 the evidence, which just means they have to convince 00:02:55.110 --> 00:02:58.879 a jury that it is 51 % likely. just more likely 00:02:58.879 --> 00:03:00.300 than not that they would have made the exact 00:03:00.300 --> 00:03:02.639 same decision even without the discriminatory 00:03:02.639 --> 00:03:04.819 factor. And we really need to emphasize what 00:03:04.819 --> 00:03:07.240 avoiding those money damages actually means in 00:03:07.240 --> 00:03:09.340 practice. Yeah, let's break that down. If the 00:03:09.340 --> 00:03:12.000 employer successfully tips that scale and proves 00:03:12.000 --> 00:03:14.960 the same decision defense, the consequences for 00:03:14.960 --> 00:03:17.400 the employee who brought the lawsuit are severe. 00:03:17.639 --> 00:03:20.639 The law explicitly takes the biggest financial 00:03:20.639 --> 00:03:23.139 remedies off the table. Which means what exactly? 00:03:23.500 --> 00:03:26.259 The plaintiff gets no order of reinstatement. 00:03:26.880 --> 00:03:29.460 which means they do not get their job back. Wow. 00:03:29.939 --> 00:03:32.180 Furthermore, they are prohibited from receiving 00:03:32.180 --> 00:03:35.199 any substitutes like back pay for the wages they 00:03:35.199 --> 00:03:37.460 already lost or front pay for the wages they 00:03:37.460 --> 00:03:39.300 will lose in the future. Wait, hold on. Let me 00:03:39.300 --> 00:03:41.360 make sure I'm hearing this right. Go ahead. If 00:03:41.360 --> 00:03:44.580 I'm the plaintiff and I just proved to a court 00:03:44.580 --> 00:03:47.199 that my employer was intentionally discriminating 00:03:47.199 --> 00:03:49.580 against me, but they managed to prove they would 00:03:49.580 --> 00:03:51.580 have fired me anyway. Because of the separate 00:03:51.580 --> 00:03:53.620 legitimate reason. Right. Because I was late 00:03:53.620 --> 00:03:56.509 a bunch or whatever. I don't get my job back 00:03:56.509 --> 00:03:58.610 and I don't get a single dollar of my lost wages. 00:03:58.689 --> 00:04:01.150 What exactly do I get? Doesn't that just give 00:04:01.150 --> 00:04:05.409 businesses a free pass to harder prejudice as 00:04:05.409 --> 00:04:07.629 long as they can find a typo on my resume? I 00:04:07.629 --> 00:04:09.789 know. It's a very limited set of remedies, which 00:04:09.789 --> 00:04:12.629 is why it feels so jarring. If the same decision 00:04:12.629 --> 00:04:15.389 defense is proven, the plaintiff is essentially 00:04:15.389 --> 00:04:18.149 only entitled to declaratory and injunctive relief 00:04:18.149 --> 00:04:21.310 alongside their attorney's fees and court costs. 00:04:21.689 --> 00:04:24.819 OK, let's define those for the listener. Declaratory 00:04:24.819 --> 00:04:28.139 relief basically means the court issues a formal 00:04:28.139 --> 00:04:31.100 statement, a declaration saying, yes, your civil 00:04:31.100 --> 00:04:33.259 rights were violated. Correct. And injunctive 00:04:33.259 --> 00:04:35.600 relief means the court can order the employer 00:04:35.600 --> 00:04:38.279 to stop the discriminatory behavior going forward. 00:04:38.459 --> 00:04:40.339 Exactly. Plus, they have to pay your lawyers. 00:04:40.600 --> 00:04:43.680 But the employee themselves walks away without 00:04:43.680 --> 00:04:46.040 a financial payout for their own economic suffering. 00:04:46.220 --> 00:04:48.819 It is a profound compromise by the legal system. 00:04:49.339 --> 00:04:51.819 It's designed to acknowledge the wrongdoing and 00:04:51.819 --> 00:04:54.620 force the company to correct its behavior. Hence 00:04:54.620 --> 00:04:57.279 the injunction and the attorney's fees, which 00:04:57.279 --> 00:04:59.519 punish the employer and incentivize lawyers to 00:04:59.519 --> 00:05:01.800 actually take these civil rights cases. Because 00:05:01.800 --> 00:05:04.459 without attorney's fees, no lawyer would take 00:05:04.459 --> 00:05:06.560 a case where the client isn't getting a payout. 00:05:06.889 --> 00:05:09.829 Exactly. But at the same time, the law refuses 00:05:09.829 --> 00:05:12.370 to grant a financial windfall to an employee 00:05:12.370 --> 00:05:14.610 who legitimately deserved to be fired for other 00:05:14.610 --> 00:05:17.389 reasons. It's addressing a situation where both 00:05:17.389 --> 00:05:20.250 sides are essentially pointing to a truth. Which 00:05:20.250 --> 00:05:22.629 brings us to how we actually got to this compromise. 00:05:23.029 --> 00:05:27.050 We had to travel back to 1989 to a landmark Supreme 00:05:27.050 --> 00:05:29.670 Court case that absolutely shaped this landscape. 00:05:29.889 --> 00:05:32.149 We were talking about Pricewaterhouse v. Hopkins. 00:05:32.449 --> 00:05:36.509 Volume 490, U .S. Reports, page 228 for those 00:05:36.509 --> 00:05:38.649 keeping track. Right. This is the case that really 00:05:38.649 --> 00:05:41.290 blew the doors open on how these messy dual motive 00:05:41.290 --> 00:05:44.209 situations are handled in court. What's fascinating 00:05:44.209 --> 00:05:47.290 here is the sheer human complexity of the facts 00:05:47.290 --> 00:05:49.779 in the Pricewaterhouse case. The facts. are wild. 00:05:49.899 --> 00:05:52.079 They really are. Ann Hopkins was a senior manager 00:05:52.079 --> 00:05:54.899 at the accounting firm Price Waterhouse. By all 00:05:54.899 --> 00:05:57.220 objective metrics, she was a stellar performer. 00:05:57.560 --> 00:06:00.439 She secured a massive multi -million dollar contract 00:06:00.439 --> 00:06:02.540 for the firm. She billed more hours than almost 00:06:02.540 --> 00:06:04.920 any other candidate up for partnership that year. 00:06:05.079 --> 00:06:07.300 She was a star. But when she was proposed for 00:06:07.300 --> 00:06:09.500 partnership, she was put on hold and eventually 00:06:09.500 --> 00:06:13.399 denied. And the reasons she was denied are where 00:06:13.399 --> 00:06:16.360 the mixed motives come into play. On one hand, 00:06:16.399 --> 00:06:18.800 you had undeniable evidence of gender discrimination. 00:06:19.579 --> 00:06:23.139 The partners evaluating her literally submitted 00:06:23.139 --> 00:06:26.540 written comments saying she was macho, that she 00:06:26.540 --> 00:06:29.220 overcompensated for being a woman. Which is just 00:06:29.220 --> 00:06:33.040 blatant. Oh, it gets worse. Incredibly, one partner 00:06:33.040 --> 00:06:35.379 advised her that to improve her chances for partnership, 00:06:35.699 --> 00:06:38.600 she needed to walk more femininely, talk more 00:06:38.600 --> 00:06:41.279 femininely, dress more femininely, wear makeup, 00:06:41.500 --> 00:06:44.529 have her hair styled, and wear jewelry. It is 00:06:44.529 --> 00:06:46.730 staggering to hear those comments read aloud 00:06:46.730 --> 00:06:49.670 today. Yeah. That is the illegitimate discriminatory 00:06:49.670 --> 00:06:51.850 motive staring you right in the face. But on 00:06:51.850 --> 00:06:54.470 the other hand, Hopkins also had well -documented 00:06:54.470 --> 00:06:56.589 interpersonal issues. Right. The other side of 00:06:56.589 --> 00:06:58.930 the coin. Staff members found her abrasive, overly 00:06:58.930 --> 00:07:01.209 aggressive and difficult to work with. She routinely 00:07:01.209 --> 00:07:03.949 clashed with staff. So the firm argued we didn't 00:07:03.949 --> 00:07:05.709 deny her partnership because she's a woman. We 00:07:05.709 --> 00:07:07.230 denied it because she lacked the interpersonal 00:07:07.230 --> 00:07:09.829 skills required of a partner. It's the ultimate 00:07:09.829 --> 00:07:12.769 collision of right and wrong on both sides. So 00:07:12.769 --> 00:07:17.230 how did the Supreme Court untangle that? Because 00:07:17.230 --> 00:07:19.509 they have these two competing truths sitting 00:07:19.509 --> 00:07:21.430 right in front of them. The Supreme Court handed 00:07:21.430 --> 00:07:24.550 down a pivotal ruling. They decided that a plaintiff 00:07:24.550 --> 00:07:26.829 does not need to prove that discrimination was 00:07:26.829 --> 00:07:28.709 the sole reason for the employment decision. 00:07:28.949 --> 00:07:32.050 Which is huge. It's a game changer. If the plaintiff 00:07:32.050 --> 00:07:34.089 can prove that discrimination was a motivating 00:07:34.089 --> 00:07:37.930 factor, even if other legitimate factors existed, 00:07:38.310 --> 00:07:42.180 the burden then shifts to the employer. The employer 00:07:42.180 --> 00:07:44.819 then has to prove by a preponderance of the evidence 00:07:44.819 --> 00:07:47.379 that they would have made the exact same decision 00:07:47.379 --> 00:07:49.959 even if they hadn't considered the discriminatory 00:07:49.959 --> 00:07:52.540 factor. So if we look at the Ann Hopkins case, 00:07:52.819 --> 00:07:55.040 she didn't have to prove that her interpersonal 00:07:55.040 --> 00:07:57.319 skills were perfect. She didn't have to prove 00:07:57.319 --> 00:07:59.620 everyone loved working with her. Right. She just 00:07:59.620 --> 00:08:01.980 had to prove that the blatant gender stereotyping 00:08:01.980 --> 00:08:04.980 played a role in the decision. Once she did that, 00:08:05.139 --> 00:08:07.199 the firm had to prove they would have denied 00:08:07.199 --> 00:08:09.959 her partnership based only on her abrasiveness. 00:08:10.490 --> 00:08:13.189 This ruling was massive because it finally recognized 00:08:13.189 --> 00:08:15.350 that discrimination is rarely the only thing 00:08:15.350 --> 00:08:17.129 sitting at the table when a hiring or firing 00:08:17.129 --> 00:08:20.230 decision is made. Precisely. And it also established 00:08:20.230 --> 00:08:22.189 that plaintiffs don't necessarily need a smoking 00:08:22.189 --> 00:08:25.990 gun to win these cases. Before this, many courts 00:08:25.990 --> 00:08:28.110 struggled with how to handle cases where employers 00:08:28.110 --> 00:08:31.519 were hiding behind legitimate reasons. illegitimate 00:08:31.519 --> 00:08:33.600 reasons were clearly lurking in the background. 00:08:33.879 --> 00:08:36.419 So what does this all mean for a lawyer who is 00:08:36.419 --> 00:08:39.000 sitting at their desk today looking at a stack 00:08:39.000 --> 00:08:41.460 of evidence, trying to figure out how to classify 00:08:41.460 --> 00:08:44.360 a case? How did they know what kind of legal 00:08:44.360 --> 00:08:47.139 battle they're actually walking into? That takes 00:08:47.139 --> 00:08:49.320 us into the intricate mechanics of how these 00:08:49.320 --> 00:08:51.539 trials are actually fought. To understand the 00:08:51.539 --> 00:08:54.080 modern landscape, we look to a 2002 case from 00:08:54.080 --> 00:08:56.100 the Third Circuit Court of Appeals called Fackett 00:08:56.100 --> 00:08:59.539 v. Aetna, Inc. Okay. This case clearly delineated 00:08:59.539 --> 00:09:01.679 the traditional dividing line between what courts 00:09:01.679 --> 00:09:04.440 call a true mixed motive case and what they call 00:09:04.440 --> 00:09:06.919 a pretext case. And that dividing line is all 00:09:06.919 --> 00:09:09.179 about the type of evidence the employee brings 00:09:09.179 --> 00:09:11.779 to the table. Let's break down those two paths 00:09:11.779 --> 00:09:14.159 for the listener. The first path is the direct 00:09:14.159 --> 00:09:17.139 evidence path. If the plaintiff actually has 00:09:17.139 --> 00:09:19.240 direct evidence showing that the employer's decision 00:09:19.240 --> 00:09:22.220 was motivated by animus toward a protected class 00:09:22.220 --> 00:09:25.059 like the written comments in the Price Waterhouse 00:09:25.059 --> 00:09:28.379 case telling her to wear more makeup, then the 00:09:28.379 --> 00:09:31.000 court classifies it as a mixed motive case. Got 00:09:31.000 --> 00:09:33.820 it. When that happens, the judge gives the jury 00:09:33.820 --> 00:09:36.620 a very specific instruction on how to weigh those 00:09:36.620 --> 00:09:39.080 competing motives using the framework we just 00:09:39.080 --> 00:09:41.379 discussed. But let's be real. Direct evidence 00:09:41.379 --> 00:09:44.320 is incredibly rare. Very rare. Employers today 00:09:44.320 --> 00:09:45.960 usually don't write down that they want someone 00:09:45.960 --> 00:09:48.759 to go to charm school or put their prejudices 00:09:48.759 --> 00:09:50.759 in a memo. So what happens when the employee 00:09:50.759 --> 00:09:53.399 doesn't have that smoking gun? What if they only 00:09:53.399 --> 00:09:56.279 have circumstantial puzzle pieces? That takes 00:09:56.279 --> 00:09:58.539 us to the second path, the circumstantial evidence 00:09:58.539 --> 00:10:01.389 path. If the evidence of discrimination is only 00:10:01.389 --> 00:10:03.610 indirect, the case is traditionally classified 00:10:03.610 --> 00:10:06.889 as a pretext case. A pretext case. Right. And 00:10:06.889 --> 00:10:09.210 in a pretext case, the courts don't use the mixed 00:10:09.210 --> 00:10:11.950 motive instructions. Instead, they use a highly 00:10:11.950 --> 00:10:14.330 choreographed legal mechanism called the McDonnell 00:10:14.330 --> 00:10:17.429 -Douglas burden shifting framework. The McDonnell 00:10:17.429 --> 00:10:20.169 -Douglas burden shifting framework. Yeah. That 00:10:20.169 --> 00:10:22.590 sounds like a complex legal chess maneuver. It 00:10:22.590 --> 00:10:24.529 really is. Let's actually walk through what that 00:10:24.529 --> 00:10:26.610 looks like in action, because it's crucial for 00:10:26.610 --> 00:10:29.090 understanding how these cases are fought. Essentially 00:10:29.090 --> 00:10:31.029 a three step dance. Right. It is exactly a three 00:10:31.029 --> 00:10:34.370 step dance. Step one. The employee has to establish 00:10:34.370 --> 00:10:37.210 a basic surface level case of discrimination. 00:10:37.830 --> 00:10:40.110 They have to show they are in a protected class. 00:10:40.210 --> 00:10:43.090 They were qualified for the job. They were fired 00:10:43.090 --> 00:10:46.029 or suffered an adverse action. And the circumstances 00:10:46.029 --> 00:10:48.549 look suspicious. It's a relatively low bar. Very 00:10:48.549 --> 00:10:50.509 low bar. Just enough to get the court's attention. 00:10:50.809 --> 00:10:52.909 OK. So then the ball is in the employer's court. 00:10:53.070 --> 00:10:56.340 Step two. Step two. The burden shifts to the 00:10:56.340 --> 00:10:59.139 employer. The employer now has to articulate 00:10:59.139 --> 00:11:02.299 a legitimate, non -discriminatory reason for 00:11:02.299 --> 00:11:04.820 the firing. They don't have to prove it was the 00:11:04.820 --> 00:11:07.700 actual reason. They just have to state a valid 00:11:07.700 --> 00:11:10.700 legal reason. For example, we fired him because 00:11:10.700 --> 00:11:12.720 he was late three times last month. Exactly. 00:11:12.899 --> 00:11:16.340 Which brings us to the final, hardest step. Step 00:11:16.340 --> 00:11:19.240 three. The ball goes back to the employee. Right. 00:11:19.629 --> 00:11:22.929 In step three, the employee has to prove that 00:11:22.929 --> 00:11:26.049 the employer's stated reason is a pretext, meaning 00:11:26.049 --> 00:11:29.070 it's a cover -up. Hence the name, pretext case. 00:11:29.350 --> 00:11:31.570 Yes. The employee has to show that they weren't 00:11:31.570 --> 00:11:34.389 actually fired for being late, but that the lateness 00:11:34.389 --> 00:11:37.169 is just a convenient excuse to hide the real 00:11:37.169 --> 00:11:39.970 discriminatory reason. So in a pretext case, 00:11:40.230 --> 00:11:43.470 it's an all -or -nothing battle. You are arguing 00:11:43.470 --> 00:11:45.750 that the employer's legitimate reason is completely 00:11:45.750 --> 00:11:48.809 fake, whereas in a mixed motive case, you are 00:11:48.809 --> 00:11:51.080 admitting, The legitimate reason might be real, 00:11:51.200 --> 00:11:53.720 but the discriminatory reason was also real. 00:11:53.980 --> 00:11:56.299 Exactly. You're trying to say that the fake reason 00:11:56.299 --> 00:11:59.330 was just a smokescreen. This raises an important 00:11:59.330 --> 00:12:01.529 question, though, because the Supreme Court threw 00:12:01.529 --> 00:12:04.429 a massive wrench into this clean division in 00:12:04.429 --> 00:12:07.669 2003 with a case called Desert Palace Inc. v. 00:12:07.710 --> 00:12:09.970 Costa. Another landmark case. Oh, absolutely. 00:12:10.070 --> 00:12:12.190 The court recognized exactly what you just pointed 00:12:12.190 --> 00:12:14.190 out. Direct evidence is almost impossible to 00:12:14.190 --> 00:12:16.509 find. So in Desert Palace, the Supreme Court 00:12:16.509 --> 00:12:19.129 ruled that a plaintiff does not need direct evidence 00:12:19.129 --> 00:12:21.590 to get a mixed motive jury instruction. Wait. 00:12:21.669 --> 00:12:24.730 Yes. They can use circumstantial evidence to 00:12:24.730 --> 00:12:27.009 prove that discrimination was a motivating factor. 00:12:27.210 --> 00:12:29.720 Wow. So Desert Palace essentially blurred the 00:12:29.720 --> 00:12:32.379 lines. It allowed employees to use the puzzle 00:12:32.379 --> 00:12:34.860 pieces, the circumstantial evidence, not just 00:12:34.860 --> 00:12:37.440 to prove a cover up in a pretext case, but to 00:12:37.440 --> 00:12:39.700 argue that it was a mixed motive situation. It 00:12:39.700 --> 00:12:42.340 absolutely did. That must have sent shockwaves 00:12:42.340 --> 00:12:44.259 through the strategies of employment lawyers 00:12:44.259 --> 00:12:47.129 everywhere. It fundamentally changed how employers 00:12:47.129 --> 00:12:50.309 have to defend themselves because suddenly circumstantial 00:12:50.309 --> 00:12:52.450 evidence became much more dangerous. They couldn't 00:12:52.450 --> 00:12:54.929 just brush off indirect evidence anymore. Here's 00:12:54.929 --> 00:12:57.610 where it gets really interesting, because all 00:12:57.610 --> 00:13:00.350 of these definitions, the evidence paths and 00:13:00.350 --> 00:13:03.789 the Supreme Court rulings lead to what is essentially 00:13:03.789 --> 00:13:07.210 a high stakes psychological chess match between 00:13:07.210 --> 00:13:09.590 the employer and the employee. It really is a 00:13:09.590 --> 00:13:11.570 game of chess. We have some incredible analysis 00:13:11.570 --> 00:13:14.330 on this from a 2005 article published in the 00:13:14.330 --> 00:13:17.250 St. Mary's Law Journal. It's titled Much Ado 00:13:17.250 --> 00:13:19.690 About Nothing, written by Matthew Scott and Russell 00:13:19.690 --> 00:13:22.509 Chapman. They break down the strategic game theory 00:13:22.509 --> 00:13:25.620 of these laws brilliantly. The Scott and Chapman 00:13:25.620 --> 00:13:28.600 article is fantastic because it strips away the 00:13:28.600 --> 00:13:30.700 legalese and looks at the strategic tradeoffs. 00:13:30.840 --> 00:13:33.259 It shows how the law attempts to balance the 00:13:33.259 --> 00:13:35.700 scales of justice based entirely on the defensive 00:13:35.700 --> 00:13:38.120 posture the employer chooses to take. Right. 00:13:38.179 --> 00:13:41.019 They lay out two contrasting scenarios that every 00:13:41.019 --> 00:13:43.820 employment lawyer has to agonizingly weigh before 00:13:43.820 --> 00:13:45.700 walking into the courtroom. Let's set up the 00:13:45.700 --> 00:13:48.000 board for these two scenarios. Scenario A is 00:13:48.000 --> 00:13:50.519 the traditional pretext case, right under 42 00:13:50.519 --> 00:13:54.480 U .S .C. Section 2000E2A. In this scenario, the 00:13:54.480 --> 00:13:57.679 employer completely disavows any illegal motive 00:13:57.679 --> 00:14:00.120 whatsoever. Total denial. They stand firm, they 00:14:00.120 --> 00:14:02.340 dig their heels in, and they profess that they 00:14:02.340 --> 00:14:04.539 had only a non -discriminatory motive for firing 00:14:04.539 --> 00:14:06.919 the employee. We fired them for being late, period. 00:14:07.100 --> 00:14:09.509 Nothing else played a role. Right. The employer 00:14:09.509 --> 00:14:12.149 in scenario A is taking a hard line stance of 00:14:12.149 --> 00:14:14.029 absolute innocence regarding discrimination. 00:14:14.389 --> 00:14:16.509 Now, when the employer does this, it forces the 00:14:16.509 --> 00:14:18.529 plaintiff into a very difficult position. Because 00:14:18.529 --> 00:14:21.450 of the burden of proof. Exactly. The plaintiff 00:14:21.450 --> 00:14:23.549 now has to prove that the challenge employment 00:14:23.549 --> 00:14:26.769 action was taken because of their race, gender, 00:14:26.909 --> 00:14:29.809 religion, etc. The legal standard is because 00:14:29.809 --> 00:14:32.129 of, which is an incredibly high bar. It's all 00:14:32.129 --> 00:14:34.450 or nothing. Right. You essentially have to prove 00:14:34.450 --> 00:14:36.809 that if the discrimination hadn't existed, the 00:14:36.809 --> 00:14:38.879 firing wouldn't have happened. It's a massive 00:14:38.879 --> 00:14:41.600 burden for the employee to carry. But, and this 00:14:41.600 --> 00:14:44.519 is the gamble for the employer, if the employee 00:14:44.519 --> 00:14:47.039 is successful in proving that the action was 00:14:47.039 --> 00:14:49.740 taken because of that discrimination, they hit 00:14:49.740 --> 00:14:52.200 the jackpot. They certainly do. As Scott and 00:14:52.200 --> 00:14:54.679 Chapman point out, the successful plaintiff in 00:14:54.679 --> 00:14:58.100 Scenario A is entitled to the full panoply of 00:14:58.100 --> 00:15:01.190 damages. Reinstatement. Back pay, front pay, 00:15:01.350 --> 00:15:04.149 emotional distress, the works. The employer took 00:15:04.149 --> 00:15:06.649 a hard line, they lost the gamble, and now they 00:15:06.649 --> 00:15:08.870 pay the maximum financial penalty. Exactly. It's 00:15:08.870 --> 00:15:11.450 a high risk, high reward strategy for both sides. 00:15:11.789 --> 00:15:14.090 Now let's look at scenario B, the mixed motive 00:15:14.090 --> 00:15:17.549 case under 42 USC section 2000 E2 meter. The 00:15:17.549 --> 00:15:20.269 other side of the chessboard. Precisely. In this 00:15:20.269 --> 00:15:22.870 scenario, the employer takes a completely different 00:15:22.870 --> 00:15:26.899 posture. The employer is somewhat contrite. They 00:15:26.899 --> 00:15:30.139 either openly admit to a partially discriminatory 00:15:30.139 --> 00:15:33.379 reason or they look at the evidence the employee 00:15:33.379 --> 00:15:36.460 has gathered and realize, OK, a jury is going 00:15:36.460 --> 00:15:39.320 to believe that bias played a role here. They 00:15:39.320 --> 00:15:42.080 see the writing on the wall. But crucially, while 00:15:42.080 --> 00:15:45.120 they concede the improper motive, they deploy 00:15:45.120 --> 00:15:48.139 the same decision defense. They claim they still 00:15:48.139 --> 00:15:50.159 would have taken the same action anyway because 00:15:50.159 --> 00:15:52.580 the employee was terrible at their job. So they're 00:15:52.580 --> 00:15:55.379 walking into court and saying. Yes, part of our 00:15:55.379 --> 00:15:57.379 reasoning was discriminatory and we shouldn't 00:15:57.379 --> 00:15:59.259 have done that, but we still would have fired 00:15:59.259 --> 00:16:01.200 them because they stole from the cash register. 00:16:01.379 --> 00:16:03.419 Right. This is where the concept of quid pro 00:16:03.419 --> 00:16:06.399 quo comes into play. A legal this for that. And 00:16:06.399 --> 00:16:08.779 that is the perfect term for it. As the authors 00:16:08.779 --> 00:16:11.799 of the article emphasize, no jury takes an admitted 00:16:11.799 --> 00:16:15.179 improper motive lightly. It is a terrifying thing 00:16:15.179 --> 00:16:17.740 for a corporate lawyer to advise their client 00:16:17.740 --> 00:16:20.700 to admit to discriminatory reasoning. I can imagine. 00:16:20.820 --> 00:16:23.200 You're basically handing the plaintiff a massive 00:16:23.200 --> 00:16:26.100 PR victory and angering the jury right out of 00:16:26.100 --> 00:16:29.269 the gate. However, the legal quid pro quo makes 00:16:29.269 --> 00:16:33.070 it incredibly tempting by admitting it and successfully 00:16:33.070 --> 00:16:35.830 proving the legitimate reason the employer's 00:16:35.830 --> 00:16:37.950 financial risk plummets. Because of those cap 00:16:37.950 --> 00:16:40.590 damages we talked about. Exactly. As we discussed 00:16:40.590 --> 00:16:42.889 at the very beginning, their liability is reduced 00:16:42.889 --> 00:16:45.909 to declaratory relief, injunctions and attorney's 00:16:45.909 --> 00:16:49.110 fees. They completely eliminate the risk of massive 00:16:49.110 --> 00:16:51.990 back pay or front pay awards. They essentially 00:16:51.990 --> 00:16:54.909 put a hard cap on their financial bleeding. But 00:16:54.909 --> 00:16:57.830 what is the quid pro quo for the plaintiff? Why 00:16:57.830 --> 00:17:00.309 would an employee ever agree to fade a mixed 00:17:00.309 --> 00:17:03.929 motive battle if the payout is so small? In exchange 00:17:03.929 --> 00:17:05.990 for the employer getting that reduced financial 00:17:05.990 --> 00:17:08.829 risk, the plaintiff gets the benefit of a much 00:17:08.829 --> 00:17:11.369 lower standard of liability. Remember, in scenario 00:17:11.369 --> 00:17:14.210 A, the plaintiff had to prove the firing happened 00:17:14.210 --> 00:17:16.170 because of the discrimination. Y 'all are nothing 00:17:16.170 --> 00:17:19.450 standard. Right. In scenario B, the mixed motive 00:17:19.450 --> 00:17:22.029 case, the plaintiff only has to prove that the 00:17:22.029 --> 00:17:24.660 discrimination was a motivating factor. They 00:17:24.660 --> 00:17:26.359 don't have to prove it was the sole cause or 00:17:26.359 --> 00:17:28.500 even the main cause. They just have to prove 00:17:28.500 --> 00:17:30.740 it was in the room and played a part in the decision. 00:17:31.019 --> 00:17:35.400 It is an absolute seesaw of legal strategy. You 00:17:35.400 --> 00:17:38.180 are directly balancing the burden of proof against 00:17:38.180 --> 00:17:41.079 financial damages. If you make it easier to prove 00:17:41.079 --> 00:17:43.900 liability, you lower the damages. If you demand 00:17:43.900 --> 00:17:46.319 maximum damages, you have to meet the hardest 00:17:46.319 --> 00:17:48.599 burden of proof. That's the architecture of the 00:17:48.599 --> 00:17:51.500 law. It's brilliant, but it's also incredibly 00:17:51.500 --> 00:17:53.180 cynical when you think about it from a human 00:17:53.180 --> 00:17:55.160 perspective. If we connect this to the bigger 00:17:55.160 --> 00:17:58.000 picture, this deep dive perfectly illustrates 00:17:58.000 --> 00:18:00.980 why the law can't afford to be purely idealistic. 00:18:01.220 --> 00:18:03.920 The law isn't always a blunt instrument of absolute 00:18:03.920 --> 00:18:06.160 right and wrong. No, it really isn't. In these 00:18:06.160 --> 00:18:08.519 mixed motive cases, the legal system is acknowledging 00:18:08.519 --> 00:18:11.420 that two completely contradictory truths can 00:18:11.420 --> 00:18:14.789 exist at the exact same time. An employer can 00:18:14.789 --> 00:18:17.609 harbor deeply illegal prejudice and an employee 00:18:17.609 --> 00:18:20.190 can legitimately deserve to be terminated for 00:18:20.190 --> 00:18:22.269 their performance. It's the grayest of gray areas. 00:18:22.490 --> 00:18:25.470 Exactly. The law has to look at both of those 00:18:25.470 --> 00:18:28.890 truths, weigh them on a calibrated scale, and 00:18:28.890 --> 00:18:31.109 find a way to assign liability that reflects 00:18:31.109 --> 00:18:34.710 that messy reality. It's designed to discourage 00:18:34.710 --> 00:18:36.890 discrimination by slapping the employer with 00:18:36.890 --> 00:18:39.410 attorney's fees and injunctions without forcing 00:18:39.410 --> 00:18:42.369 businesses to retain or provide windfall payouts 00:18:42.369 --> 00:18:44.769 to employers. They genuinely had a right to fire. 00:18:44.970 --> 00:18:47.390 We've covered incredible ground today. We moved 00:18:47.390 --> 00:18:49.309 from the foundational definitions of the same 00:18:49.309 --> 00:18:52.150 decision defense, explored the human drama of 00:18:52.150 --> 00:18:55.289 Pricewaterhouse v. Hopkins, untangled the complex 00:18:55.289 --> 00:18:58.009 burden shifting frameworks, and finally analyzed 00:18:58.009 --> 00:18:59.869 the high stakes game theory of the courtroom. 00:19:00.069 --> 00:19:02.549 We really untacked a lot. But before we wrap 00:19:02.549 --> 00:19:04.769 up, we want to leave you with one final provocative 00:19:04.769 --> 00:19:06.910 thought to mull over as you go about your day. 00:19:07.170 --> 00:19:09.250 Take everything we've just discussed about the 00:19:09.250 --> 00:19:11.710 strategic quid pro quo and ask yourself this. 00:19:12.109 --> 00:19:15.069 If the Leo system intentionally allows an employer 00:19:15.069 --> 00:19:17.410 to escape paying financial damages to an employee 00:19:17.410 --> 00:19:19.130 by proving they would have fired them anyway, 00:19:19.329 --> 00:19:21.670 does that setup successfully protect businesses 00:19:21.670 --> 00:19:24.750 from unwarranted payouts? Or does it inadvertently 00:19:24.750 --> 00:19:26.910 create a discount for admitting to prejudice? 00:19:27.559 --> 00:19:29.960 It's a profound question that really challenges 00:19:29.960 --> 00:19:32.480 how we define justice in a flawed world. It really 00:19:32.480 --> 00:19:35.000 does. Thank you so much for joining us on this 00:19:35.000 --> 00:19:37.799 deep dive. Keep feeding that natural curiosity 00:19:37.799 --> 00:19:40.440 of yours. Keep looking for those multiple perspectives. 00:19:40.539 --> 00:19:43.359 And remember that no matter how complex the topic, 00:19:43.519 --> 00:19:45.920 there is always more beneath the surface to explore. 00:19:46.079 --> 00:19:47.380 We will catch you on the next one.