Third Circuit Notes Resolution of Split Re Whether Mixed-motive Theory Discrimination Claims Must be Proven with Direct Evidence

Per Makky v. Chertoff, --- F.3d ----, 2008 WL 3091785 (3rd Cir. Aug 07, 2008):

Although the courts were divided about whether a discrimination claim brought under a mixed-motive theory had to be proven with direct evidence, the Supreme Court resolved the circuit split in Desert Palace by holding that a plaintiff does not need to present "direct evidence" of discrimination to proceed on a mixed-motive theory of discrimination under Title VII. Id. at 92. The Court reiterated the general principle that "Title VII has made it an 'unlawful employment practice for an employer ... to discriminate against any individual ..., because of such individual's race, color, religion, sex, or national origin." Id . at 92-93 (quoting 42 U.S.C. § 2000e-2(a)(1)). In sum, "[i]n order to obtain an instruction under § 2000e-2(m), 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.' " Id. at 101.