U.S. Supreme Court Price Waterhouse v. Hopkins, 490
U.S. 228 (1989) Price Waterhouse v.
Hopkins No. 87-1167 Argued October 31,
1988 Decided May 1, 1989 490
U.S. 228 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus Respondent was a senior manager in an office of petitioner
professional accounting partnership when she was proposed for
partnership in 1982. She was neither offered nor denied
partnership, but instead her candidacy was held for reconsideration
the following year. When the partners in her office later refused
to repropose her for partnership, she sued petitioner in Federal
District Court under Title VII of the Civil Rights Act of 1964,
charging that it had discriminated against her on the basis of sex
in its partnership decisions. The District Court ruled in
respondent's favor on the question of liability, holding that
petitioner had unlawfully discriminated against her on the basis of
sex by consciously giving credence and effect to partners' comments
about her that resulted from sex stereotyping. The Court of Appeals
affirmed. Both courts held that an employer who has allowed a
discriminatory motive to play a part in an employment decision must
prove by clear and convincing evidence that it would have made the
same decision in the absence of discrimination, and that petitioner
had not carried this burden. Held: The judgment is reversed, and the case is
remanded.

															263 U.S.App.D.C. 321, 825 F.2d 458, reversed and remanded.

															JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS, concluded that, when a plaintiff in a Title
VII case proves that her gender played a part in an employment
decision, the defendant may avoid a finding of liability by proving
by a preponderance of the evidence that it would have made the same
decision even if it had not taken the plaintiff's gender into
account. The courts below erred by requiring petitioner to make its
proof by clear and convincing evidence. Pp. 490 U. S.
237 -258.

															(a) The balance between employee rights and employer
prerogatives established by Title VII by eliminating certain bases
for distinguishing among employees, while otherwise preserving
employers' freedom of choice, is decisive in this case. The words
"because of" in § 703(a)(1) of the Act, which forbids an employer
to make an adverse decision against an employee "because of such
individual's . . . sex," requires looking at all of the
reasons, both legitimate and illegitimate, contributing to the
decision at the time it is made. The preservation of
employers' freedom of choice means that an employer will not be
liable if it can prove that, if Page 490 U. S. 229 it had not taken gender into account, it would have come to the
same decision. This Court's prior decisions demonstrate that the
plaintiff who shows that an impermissible motive played a
motivating part in an adverse employment decision thereby places
the burden on the defendant to show that it would have made the
same decision in the absence of the unlawful motive. Here,
petitioner may not meet its burden by merely showing that
respondent's interpersonal problems -- abrasiveness with staff
members -- constituted a legitimate reason for denying her
partnership; instead, petitioner must show that its legitimate
reason, standing alone, would have induced petitioner to deny
respondent partnership. Pp. 490 U. S.
239 -252.

															(b) Conventional rules of civil litigation generally apply in
Title VII cases, and one of these rules is that the parties need
only prove their case by a preponderance of the evidence. Pp. 490 U. S.
252 -255.

															(c) The District Court's finding that sex stereotyping was
permitted to play a part in evaluating respondent as a candidate
for partnership was not clearly erroneous. This finding is not
undermined by the fact that many of the suspect comments made about
respondent were made by partners who were supporters, rather than
detractors. Pp. 490 U. S.
255 -258.

															JUSTICE WHITE, although concluding that the Court of Appeals
erred in requiring petitioner to prove by clear and convincing
evidence that it would have reached the same employment decision in
the absence of the improper motive, rather than merely requiring
proof by a preponderance of the evidence, as in Mt. Healthy
City Bd. of Ed. v. Doyle, 429 U. S. 274 ,
which sets forth the proper approach to causation in this case,
also concluded that the plurality here errs in seeming to require,
at least in most cases, that the employer carry its burden by
submitting objective evidence that the same result would have
occurred absent the unlawful motivation. In a mixed-motives case,
where the legitimate motive found would have been ample grounds for
the action taken, and the employer credibly testifies that the
action would have been taken for the legitimate reasons alone, this
should be ample proof, and there is no special requirement of
objective evidence. This would even more plainly be the case where
the employer denies any illegitimate motive in the first place, but
the court finds that illegitimate, as well as legitimate, factors
motivated the adverse action. Pp. 490 U. S.
258 -261.

															JUSTICE O'CONNOR, although agreeing that, on the facts of this
case, the burden of persuasion should shift to petitioner to
demonstrate by a preponderance of the evidence that it would have
reached the same decision absent consideration of respondent's
gender, and that this burden shift is properly part of the
liability phase of the litigation, concluded that the plurality
misreads Title VII's substantive causation requirement to command
burden-shifting if the employer's decisional process is Page 490 U. S. 230 "tainted" by awareness of sex or race in any way, and thereby
effectively eliminates the requirement. JUSTICE O'CONNOR also
concluded that the burden-shifting rule should be limited to cases,
such as the present, in which the employer has created uncertainty
as to causation by knowingly giving substantial weight to an
impermissible criterion. Pp. 490 U. S.
261 -279.

															(a) Contrary to the plurality's conclusion, Title VII's plain
language making it unlawful for an employer to undertake an adverse
employment action "because of" prohibited factors and the statute's
legislative history demonstrate that a substantive violation only
occurs when consideration of an illegitimate criterion is the
"but-for" cause of the adverse action. However, nothing in the
language, history, or purpose of the statute prohibits adoption of
an evidentiary rule which places the burden of persuasion on the
defendant to demonstrate that legitimate concerns would have
justified an adverse employment action where the plaintiff has
convinced the factfinder that a forbidden factor played a
substantial role in the employment decision. Such a rule has been
adopted in tort and other analogous types of cases, where leaving
the burden of proof on the plaintiff to prove "but-for" causation
would be unfair or contrary to the deterrent purposes embodied in
the concept of duty of care. Pp. 490 U. S.
262 -269.

															(b) Although the burden-shifting rule adopted here departs from
the careful framework established by McDonnell Douglas Corp. v.
Green, 411 U. S. 792 , and Texas Dept. of Community Affairs v. Burdine, 450 U.
S. 248 -- which clearly contemplate that an individual
disparate treatment plaintiff bears the burden of persuasion
throughout the litigation -- that departure is justified in cases,
such as the present, where the plaintiff, having presented direct
evidence that the employer placed substantial, though
unquantifiable, reliance on a forbidden factor in making an
employment decision, has taken her proof as far as it could go,
such that it is appropriate to require the defendant, which has
created the uncertainty as to causation by considering the
illegitimate criterion, to show that its decision would have been
justified by wholly legitimate concerns. Moreover, a rule shifting
the burden in these circumstances will not conflict with other
Title VII policies, particularly its prohibition on preferential
treatment based on prohibited factors. Watson v. Fort Worth
Bank & Trust, 487 U. S. 977 ,
distinguished. Pp. 490 U. S.
270 -276.

															(c) Thus, in order to justify shifting the burden on the
causation issue to the defendant, a disparate treatment plaintiff
must show by direct evidence that decisionmakers placed substantial
negative reliance on an illegitimate criterion in reaching their
decision. Such a showing entitles the factfinder to presume that
the employer's discriminatory animus made a difference in the
outcome, and, if the employer fails to carry its burden of
persuasion, to conclude that the employer's decision was made
"because of " consideration of the illegitimate factor, thereby
satisfying Page 490 U. S. 231 the substantive standard for liability under Title VII. This
burden-shifting rule supplements the McDonnell
Douglas-Burdine framework, which continues to apply where the
plaintiff has failed to satisfy the threshold standard set forth
herein. Pp. 490 U. S.
276 -279.

															BRENNAN, J., announced the judgment of the Court and delivered
an opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined.
WHITE, J., post, p. 490 U. S. 258 ,
and O'CONNOR, J., post, p. 490 U. S. 261 ,
filed opinions concurring in the judgment. KENNEDY, J., filed a
dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J.,
joined, post, p. 490 U. S.
279 .

															JUSTICE BRENNAN announced the judgment of the Court and
delivered an opinion, in which JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join.

															Ann Hopkins was a senior manager in an office of Price
Waterhouse when she was proposed for partnership in 1982. She was
neither offered nor denied admission to the partnership; instead,
her candidacy was held for reconsideration the following year. When
the partners in her office later refused Page 490 U. S. 232 to repropose her for partnership, she sued Price Waterhouse
under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., charging
that the firm had discriminated against her on the basis of sex in
its decisions regarding partnership. Judge Gesell in the Federal
District Court for the District of Columbia ruled in her favor on
the question of liability, 618 F.
Supp. 1109 (1985), and the Court of Appeals for the District of
Columbia Circuit affirmed. 263 U.S.App.D.C. 321, 825 F.2d 458
(1987). We granted certiorari to resolve a conflict among the
Courts of Appeals concerning the respective burdens of proof of a
defendant and plaintiff in a suit under Title VII when it has been
shown that an employment decision resulted from a mixture of
legitimate and illegitimate motives. 485 U.S. 933 (1988). I At Price Waterhouse, a nationwide professional accounting
partnership, a senior manager becomes a candidate for partnership
when the partners in her local office submit her name as a
candidate. All of the other partners in the firm are then invited
to submit written comments on each candidate -- either on a "long"
or a "short" form, depending on the partner's degree of exposure to
the candidate. Not every partner in the firm submits comments on
every candidate. After reviewing the comments and interviewing the
partners who submitted them, the firm's Admissions Committee makes
a recommendation to the Policy Board. This recommendation will be
either that the firm accept the candidate for partnership, put her
application on "hold," or deny her the promotion outright. The
Policy Board then decides whether to submit the candidate's name to
the entire partnership for a vote, to "hold" her candidacy, or to
reject her. The recommendation of the Admissions Committee, and the
decision of the Policy Board, are not controlled by fixed
guidelines: a certain number of positive comments from partners
will not guarantee a candidate's admission to the partnership, nor
will a specific Page 490 U. S. 233 quantity of negative comments necessarily defeat her
application. Price Waterhouse places no limit on the number of
persons whom it will admit to the partnership in any given
year.

															Ann Hopkins had worked at Price Waterhouse's Office of
Government Services in Washington, D.C., for five years when the
partners in that office proposed her as a candidate for
partnership. Of the 662 partners at the firm at that time, 7 were
women. Of the 88 persons proposed for partnership that year, only 1
-- Hopkins -- was a woman. Forty-seven of these candidates were
admitted to the partnership, 21 were rejected, and 20 -- including
Hopkins -- were "held" for reconsideration the following year.
[ Footnote 1 ] Thirteen of the 32
partners who had submitted comments on Hopkins supported her bid
for partnership. Three partners recommended that her candidacy be
placed on hold, eight stated that they did not have an informed
opinion about her, and eight recommended that she be denied
partnership.

															In a jointly prepared statement supporting her candidacy, the
partners in Hopkins' office showcased her successful 2-year effort
to secure a $25 million contract with the Department of State,
labeling it "an outstanding performance" and one that Hopkins
carried out "virtually at the partner level." Plaintiff's Exh. 15.
Despite Price Waterhouse's attempt at trial to minimize her
contribution to this project, Judge Gesell Page 490 U. S. 234 specifically found that Hopkins had "played a key role in Price
Waterhouse's successful effort to win a multimillion-dollar
contract with the Department of State." 618 F. Supp. at 1112.
Indeed, he went on,

															"[n]one of the other partnership candidates at Price Waterhouse
that year had a comparable record in terms of successfully securing
major contracts for the partnership." Ibid. The partners in Hopkins' office praised her character as well as
her accomplishments, describing her in their joint statement as "an
outstanding professional" who had a "deft touch," a "strong
character, independence and integrity." Plaintiff's Exh. 15.
Clients appear to have agreed with these assessments. At trial, one
official from the State Department described her as "extremely
competent, intelligent," "strong and forthright, very productive,
energetic and creative." Tr. 150. Another high-ranking official
praised Hopkins' decisiveness, broadmindedness, and "intellectual
clarity"; she was, in his words, "a stimulating conversationalist." Id. at 156-157. Evaluations such as these led Judge Gesell
to conclude that Hopkins "had no difficulty dealing with clients
and her clients appear to have been very pleased with her work" and
that she

															"was generally viewed as a highly competent project leader who
worked long hours, pushed vigorously to meet deadlines and demanded
much from the multidisciplinary staffs with which she worked."

															618 F. Supp. at 1112-1113.

															On too many occasions, however, Hopkins' aggressiveness
apparently spilled over into abrasiveness. Staff members seem to
have borne the brunt of Hopkins' brusqueness. Long before her bid
for partnership, partners evaluating her work had counseled her to
improve her relations with staff members. Although later
evaluations indicate an improvement, Hopkins' perceived
shortcomings in this important area eventually doomed her bid for
partnership. Virtually all of the partners' negative remarks about
Hopkins -- even those of partners supporting her -- had to do with
her "interpersonal Page 490 U. S. 235 skills." Both "[s]upporters and opponents of her candidacy,"
stressed Judge Gesell, "indicated that she was sometimes overly
aggressive, unduly harsh, difficult to work with, and impatient
with staff." Id. at 1113.

															There were clear signs, though, that some of the partners
reacted negatively to Hopkins' personality because she was a woman.
One partner described her as "macho" (Defendant's Exh. 30); another
suggested that she "overcompensated for being a woman" (Defendant's
Exh. 31); a third advised her to take "a course at charm school"
(Defendant's Exh. 27). Several partners criticized her use of
profanity; in response, one partner suggested that those partners
objected to her swearing only "because it's a lady using foul
language." Tr. 321. Another supporter explained that Hopkins

															"ha[d] matured from a tough-talking somewhat masculine
hard-nosed mgr to an authoritative, formidable, but much more
appealing lady ptr candidate."

															Defendant's Exh. 27. But it was the man who, as Judge Gesell
found, bore responsibility for explaining to Hopkins the reasons
for the Policy Board's decision to place her candidacy on hold who
delivered the coup de grace: in order to improve her
chances for partnership, Thomas Beyer advised, Hopkins should "walk
more femininely, talk more femininely, dress more femininely, wear
make-up, have her hair styled, and wear jewelry." 618 F. Supp. at
1117.

															Dr. Susan Fiske, a social psychologist and Associate Professor
of Psychology at Carnegie-Mellon University, testified at trial
that the partnership selection process at Price Waterhouse was
likely influenced by sex stereotyping. Her testimony focused not
only on the overtly sex-based comments of partners but also on
gender-neutral remarks, made by partners who knew Hopkins only
slightly, that were intensely critical of her. One partner, for
example, baldly stated that Hopkins was "universally disliked" by
staff (Defendant's Exh. 27), and another described her as
"consistently annoying and irritating" ( ibid. ); yet these
were people who had had very little contact with Hopkins. According
to Page 490 U. S. 236 Fiske, Hopkins' uniqueness (as the only woman in the pool of
candidates) and the subjectivity of the evaluations made it likely
that sharply critical remarks such as these were the product of sex
stereotyping -- although Fiske admitted that she could not say with
certainty whether any particular comment was the result of
stereotyping. Fiske based her opinion on a review of the submitted
comments, explaining that it was commonly accepted practice for
social psychologists to reach this kind of conclusion without
having met any of the people involved in the decisionmaking
process.

															In previous years, other female candidates for partnership also
had been evaluated in sex-based terms. As a general matter, Judge
Gesell concluded, "[c]andidates were viewed favorably if partners
believed they maintained their femin[in]ity while becoming
effective professional managers"; in this environment, "[t]o be
identified as a women's lib[b]er' was regarded as [a] negative
comment." 618 F. Supp. at 1117. In fact, the judge found that, in
previous years, "[o]ne partner repeatedly commented that he could not consider
any woman seriously as a partnership candidate, and believed that
women were not even capable of functioning as senior managers --
yet the firm took no action to discourage his comments, and
recorded his vote in the overall summary of the evaluations." Ibid. Judge Gesell found that Price Waterhouse legitimately emphasized
interpersonal skills in its partnership decisions, and also found
that the firm had not fabricated its complaints about Hopkins'
interpersonal skills as a pretext for discrimination. Moreover, he
concluded, the firm did not give decisive emphasis to such traits
only because Hopkins was a woman; although there were male
candidates who lacked these skills but who were admitted to
partnership, the judge found that these candidates possessed other,
positive traits that Hopkins lacked.

															The judge went on to decide, however, that some of the partners'
remarks about Hopkins stemmed from an impermissibly Page 490 U. S. 237 cabined view of the proper behavior of women, and that Price
Waterhouse had done nothing to disavow reliance on such comments.
He held that Price Waterhouse had unlawfully discriminated against
Hopkins on the basis of sex by consciously giving credence and
effect to partners' comments that resulted from sex stereotyping.
Noting that Price Waterhouse could avoid equitable relief by
proving by clear and convincing evidence that it would have placed
Hopkins' candidacy on hold even absent this discrimination, the
judge decided that the firm had not carried this heavy burden.

															The Court of Appeals affirmed the District Court's ultimate
conclusion, but departed from its analysis in one particular: it
held that, even if a plaintiff proves that discrimination played a
role in an employment decision, the defendant will not be found
liable if it proves, by clear and convincing evidence, that it
would have made the same decision in the absence of discrimination.
263 U.S.App.D.C. at 333-334, 825 F.2d at 470-471. Under this
approach, an employer is not deemed to have violated Title VII if
it proves that it would have made the same decision in the absence
of an impermissible motive, whereas, under the District Court's
approach, the employer's proof in that respect only avoids
equitable relief. We decide today that the Court of Appeals had the
better approach, but that both courts erred in requiring the
employer to make its proof by clear and convincing evidence. II The specification of the standard of causation under Title VII
is a decision about the kind of conduct that violates that statute.
According to Price Waterhouse, an employer violates Title VII only
if it gives decisive consideration to an employee's gender, race,
national origin, or religion in making a decision that affects that
employee. On Price Waterhouse's theory, even if a plaintiff shows
that her gender played a part in an employment decision, it is
still her burden to show that the decision would have been
different if the employer had Page 490 U. S. 238 not discriminated. In Hopkins' view, on the other hand, an
employer violates the statute whenever it allows one of these
attributes to play any part in an employment decision. Once a
plaintiff shows that this occurred, according to Hopkins, the
employer's proof that it would have made the same decision in the
absence of discrimination can serve to limit equitable relief, but
not to avoid a finding of liability. [ Footnote 2 ] We conclude that, as often happens, the truth
lies somewhere in-between. Page 490 U. S. 239 A In passing Title VII, Congress made the simple but momentous
announcement that sex, race, religion, and national origin are not
relevant to the selection, evaluation, or compensation of
employees. [ Footnote 3 ] Yet the
statute does not purport to limit the other qualities and
characteristics that employers may take into account in making
employment decisions. The converse, therefore, of "for cause"
legislation, [ Footnote 4 ] Title
VII eliminates certain bases for distinguishing among employees
while otherwise preserving employers' freedom of choice. This
balance between employee rights and employer prerogatives turns out
to be decisive in the case before us.

															Congress' intent to forbid employers to take gender into account
in making employment decisions appears on the face of the statute.
In now-familiar language, the statute forbids Page 490 U. S. 240 an employer to

															"fail or refuse to hire or to discharge any individual, or
otherwise to discriminate with respect to his compensation, terms,
conditions, or privileges of employment,"

															or to

															"limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's . . . sex."

															42 U.S.C. §§ 2000e-2(a)(1), (2) (emphasis added). [ Footnote 5 ] We take these words to mean that
gender must be irrelevant to employment decisions. To construe the
words "because of" as colloquial shorthand for "but-for causation,"
as does Price Waterhouse, is to misunderstand them. [ Footnote 6 ]

															But-for causation is a hypothetical construct. In determining
whether a particular factor was a but-for cause of a given event,
we begin by assuming that that factor was present at the time of
the event, and then ask whether, even if that factor had been
absent, the event nevertheless would have transpired in the same
way. The present, active tense of the operative verbs of §
703(a)(1) ("to fail or refuse"), in contrast, turns our attention
to the actual moment of the Page 490 U. S. 241 event in question, the adverse employment decision. The critical
inquiry, the one commanded by the words of § 703(a)(1), is whether
gender was a factor in the employment decision at the moment it
was made. Moreover, since we know that the words "because of"
do not mean " solely because of," [ Footnote 7 ] we also know that Title VII meant to
condemn even those decisions based on a mixture of legitimate and
illegitimate considerations. When, therefore, an employer considers
both gender and legitimate factors at the time of making a
decision, that decision was "because of " sex and the other,
legitimate considerations -- even if we may say later, in the
context of litigation, that the decision would have been the same
if gender had not been taken into account.

															To attribute this meaning to the words "because of" does not, as
the dissent asserts, post at 490 U. S. 282 ,
divest them of causal significance. A simple example illustrates
the point. Suppose two physical forces act upon and move an object,
and suppose that either force acting alone would have moved the
object. As the dissent would have it, neither physical
force was a "cause" of the motion unless we can show that, but for
one or both of them, the object would not have moved; apparently
both forces were simply "in the air" unless we can identify at
least one of them as a but-for cause of the object's movement. Post at 490 U. S. 282 .
Events that are causally overdetermined, in other words, may not
have any "cause" at all. This cannot be so.

															We need not leave our common sense at the doorstep when we
interpret a statute. It is difficult for us to imagine that, in the
simple words "because of," Congress meant Page 490 U. S. 242 to obligate a plaintiff to identify the precise causal role
played by legitimate and illegitimate motivations in the employment
decision she challenges. We conclude, instead, that Congress meant
to obligate her to prove that the employer relied upon sex-based
considerations in coming to its decision.

															Our interpretation of the words "because of" also is supported
by the fact that Title VII does identify one circumstance in which
an employer may take gender into account in making an employment
decision, namely, when gender is a

															"bona fide occupational qualification [(BFOQ)] reasonably
necessary to the normal operation of th[e] particular business or
enterprise."

															42 U.S.C. § 2000e-2(e). The only plausible inference to draw
from this provision is that, in all other circumstances, a person's
gender may not be considered in making decisions that affect her.
Indeed, Title VII even forbids employers to make gender an indirect
stumbling block to employment opportunities. An employer may not,
we have held, condition employment opportunities on the
satisfaction of facially neutral tests or qualifications that have
a disproportionate, adverse impact on members of protected groups
when those tests or qualifications are not required for performance
of the job. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988); Griggs v. Duke Power Co., 401 U.
S. 424 (1971).

															To say that an employer may not take gender into account is not,
however, the end of the matter, for that describes only one aspect
of Title VII. The other important aspect of the statute is its
preservation of an employer's remaining freedom of choice. We
conclude that the preservation of this freedom means that an
employer shall not be liable if it can prove that, even if it had
not taken gender into account, it would have come to the same
decision regarding a particular person. The statute's maintenance
of employer prerogatives is evident from the statute itself and
from its history, both in Congress and in this Court.

															To begin with, the existence of the BFOQ exception shows
Congress' unwillingness to require employers to change the very
nature of their operations in response to the statute. And our
emphasis on "business necessity" in disparate Page 490 U. S. 243 impact cases, see Watson and Griggs, and on
"legitimate, nondiscriminatory reason[s]" in disparate treatment
cases, see McDonnell Douglas Corp. v. Green, 411 U.
S. 792 , 411 U. S. 802 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), results from our awareness of Title VII's balance between
employee rights and employer prerogatives. In McDonnell
Douglas, we described as follows Title VII's goal to eradicate
discrimination while preserving workplace efficiency:

															"The broad, overriding interest, shared by employer, employee,
and consumer, is efficient and trustworthy workmanship assured
through fair and racially neutral employment and personnel
decisions. In the implementation of such decisions, it is
abundantly clear that Title VII tolerates no racial discrimination,
subtle or otherwise."

															411 U.S. at 411 U. S.
801 .

															When an employer ignored the attributes enumerated in the
statute, Congress hoped, it naturally would focus on the
qualifications of the applicant or employee. The intent to drive
employers to focus on qualifications rather, than on race,
religion, sex, or national origin is the theme of a good deal of
the statute's legislative history. An interpretive memorandum
entered into the Congressional Record by Senators Case and Clark,
comanagers of the bill in the Senate, is representative of this
general theme. [ Footnote 8 ]
According to their memorandum, Title VII

															"expressly protects the employer's right to insist that any
prospective applicant, Negro or white, must meet the applicable job
qualifications. Indeed, the very purpose of title VII is to promote
hiring on the basis of job qualifications, rather than on the basis
of race or color. [ Footnote
9 ]"

															110 Cong.Rec. 7247 (1964), quoted in Griggs v. Page 490 U. S. 244 Duke Power Co., supra, at 401 U. S. 434 .
The memorandum went on:

															"To discriminate is to make a distinction, to make a difference
in treatment or favor, and those distinctions or differences in
treatment or favor which are prohibited by section 704 are those
which are based on any five of the forbidden criteria: race, color,
religion, sex, and national origin. Any other criterion or
qualification for employment is not affected by this title."

															110 Cong.Rec. 7213 (1964).

															Many other legislators made statements to a similar effect; we
see no need to set out each remark in full here. The central point
is this: while an employer may not take gender into account in
making an employment decision (except in those very narrow
circumstances in which gender is a BFOQ), it is free to decide
against a woman for other reasons. We think these principles
require that, once a plaintiff in a Title VII case shows that
gender played a motivating part in an employment decision, the
defendant may avoid a finding of liability [ Footnote 10 ] only by proving that it would have
made the same Page 490 U. S. 245 decision even if it had not allowed gender to play such a role.
This balance of burdens is the direct result of Title VII's balance
of rights.

															Our holding casts no shadow on Burdine, in which we
decided that, even after a plaintiff has made out a prima
facie case of discrimination under Title VII, the burden of
persuasion does not shift to the employer to show that its stated
legitimate reason for the employment decision was the true reason.
450 U.S. at 450 U. S.
256 -258. We stress, first, that neither Page 490 U. S. 246 court below shifted the burden of persuasion to Price Waterhouse
on this question, and, in fact, the District Court found that
Hopkins had not shown that the firm's stated reason for its
decision was pretextual. 618 F. Supp. at 1114-1115. Moreover, since
we hold that the plaintiff retains the burden of persuasion on the
issue whether gender played a part in the employment decision, the
situation before us is not the one of "shifting burdens" that we
addressed in Burdine. Instead, the employer's burden is
most appropriately deemed an affirmative defense: the plaintiff
must persuade the factfinder on one point, and then the employer,
if it wishes to prevail, must persuade it on another. See NLRB
v. Transportation Management Corp., 462 U.
S. 393 , 462 U. S. 400 (1983). [ Footnote 11 ]

															Price Waterhouse's claim that the employer does not bear any
burden of proof (if it bears one at all) until the plaintiff has
shown "substantial evidence that Price Waterhouse's explanation for
failing to promote Hopkins was not the true reason' for its
action" (Brief for Petitioner 20) merely restates its argument that
the plaintiff in a mixed-motives case Page 490 U. S.
247 must squeeze her proof into Burdine 's framework.
Where a decision was the product of a mixture of legitimate and
illegitimate motives, however, it simply makes no sense to ask
whether the legitimate reason was " the `true reason'"
(Brief for Petitioner 20 (emphasis added)) for the decision --
which is the question asked by Burdine. See
Transportation Management, supra, at 462 U. S. 400 ,
n. 5. [ Footnote 12 ]
Oblivious to this last point, the dissent would insist that Burdine's framework perform work that it was never
intended to perform. It would require a plaintiff who challenges an
adverse employment decision in which both legitimate and
illegitimate considerations played a part to pretend that the
decision, in fact, stemmed from a single source -- for the premise
of Burdine is that either a legitimate or an illegitimate set of considerations led to the
challenged decision. To say that Burdine's evidentiary
scheme will not help us decide a case admittedly involving both kinds of considerations is not to cast aspersions on
the utility of that scheme in the circumstances for which it was
designed. Page 490 U. S. 248 B In deciding as we do today, we do not traverse new ground. We
have in the past confronted Title VII cases in which an employer
has used an illegitimate criterion to distinguish among employees,
and have held that it is the employer's burden to justify decisions
resulting from that practice. When an employer has asserted that
gender is a BFOQ within the meaning of § 703(e), for example, we
have assumed that it is the employer who must show why it must use
gender as a criterion in employment. See Dothard v.
Rawlinson, 433 U. S. 321 , 433 U. S.
332 -337 (1977). In a related context, although the Equal
Pay Act expressly permits employers to pay different wages to women
where disparate pay is the result of a "factor other than sex," see 29 U.S.C. § 206(d)(1), we have decided that it is the
employer, not the employee, who must prove that the actual
disparity is not sex-linked. See Corning Glass Works v.
Brennan, 417 U. S. 188 , 417 U. S. 196 (1974). Finally, some courts have held that, under Title VII as
amended by the Pregnancy Discrimination Act, it is the employer who
has the burden of showing that its limitations on the work that it
allows a pregnant woman to perform are necessary in light of her
pregnancy. See, e.g., Hayes v. Shelby Memorial Hospital, 726 F.2d 1543, 1548 (CA11 1984); Wright v. Olin Corp., 697
F.2d 1172, 1187 (CA4 1982). As these examples demonstrate, our
assumption always has been that, if an employer allows gender to
affect its decisionmaking process, then it must carry the burden of
justifying its ultimate decision. We have not in the past required
women whose gender has proved relevant to an employment decision to
establish the negative proposition that they would not have been
subject to that decision had they been men, and we do not do so
today.

															We have reached a similar conclusion in other contexts where the
law announces that a certain characteristic is irrelevant to the
allocation of burdens and benefits. In Mt. Healthy City Bd. of
Ed. v. Doyle, 429 U. S. 274 (1977), the Page 490 U. S. 249 plaintiff claimed that he had been discharged as a public school
teacher for exercising his free-speech rights under the First
Amendment. Because we did not wish to

															"place an employee in a better position as a result of the
exercise of constitutionally protected conduct than he would have
occupied had he done nothing," id. at 429 U. S. 285 ,
we concluded that such an employee

															"ought not to be able, by engaging in such conduct, to prevent
his employer from assessing his performance record and reaching a
decision not to rehire on the basis of that record." Id. at 429 U. S. 286 .
We therefore held that, once the plaintiff had shown that his
constitutionally protected speech was a "substantial" or
"motivating factor" in the adverse treatment of him by his
employer, the employer was obligated to prove

															"by a preponderance of the evidence that it would have reached
the same decision as to [the plaintiff] even in the absence of the
protected conduct." Id. at 429 U. S. 287 .
A court that finds for a plaintiff under this standard has
effectively concluded that an illegitimate motive was a "but-for"
cause of the employment decision. See Givhan v. Western Line
Consolidated School Dist., 439 U. S. 410 , 439 U. S. 417 (1979). See also Arlington Heights v. Metropolitan Housing
Corp., 429 U. S. 252 , 429 U. S.
270 -271, n. 21 (1977) (applying Mt. Healthy standard where plaintiff alleged that unconstitutional motive had
contributed to enactment of legislation); Hunter v.
Underwood, 471 U. S. 222 , 471 U. S. 228 (1985) (same).

															In Transportation Management, we upheld the NLRB's
interpretation of § 10(c) of the National Labor Relations Act,
which forbids a court to order affirmative relief for
discriminatory conduct against a union member "if such individual
was suspended or discharged for cause." 29 U.S.C. § 160(c). The
Board had decided that this provision meant that, once an employee
had shown that his suspension or discharge was based in part on
hostility to unions, it was up to the employer to prove by a
preponderance of the evidence that it would have made the same
decision in the absence of this impermissible motive. In such a
situation, we emphasized, Page 490 U. S. 250 "[t]he employer is a wrongdoer; he has acted out of a motive
that is declared illegitimate by the statute. It is fair that he
bear the risk that the influence of legal and illegal motives
cannot be separated, because he knowingly created the risk and
because the risk was created not by innocent activity, but by his
own wrongdoing."

															462 U.S. at 462 U. S.
403 .

															We have, in short, been here before. Each time, we have
concluded that the plaintiff who shows that an impermissible motive
played a motivating part in an adverse employment decision has
thereby placed upon the defendant the burden to show that it would
have made the same decision in the absence of the unlawful motive.
Our decision today treads this well worn path. C In saying that gender played a motivating part in an employment
decision, we mean that, if we asked the employer at the moment of
the decision what its reasons were and if we received a truthful
response, one of those reasons would be that the applicant or
employee was a woman. [ Footnote
13 ] In the specific context of sex stereotyping, an employer
who acts on the basis of a belief that a woman cannot be
aggressive, or that she must not be, has acted on the basis of
gender.

															Although the parties do not overtly dispute this last
proposition, the placement by Price Waterhouse of "sex
stereotyping" in quotation marks throughout its brief seems to us
an insinuation either that such stereotyping was not present in
this case or that it lacks legal relevance. We reject both
possibilities. Page 490 U. S. 251 As to the existence of sex stereotyping in this case, we are not
inclined to quarrel with the District Court's conclusion that a
number of the partners' comments showed sex stereotyping at work. See infra at 490 U. S.
255 -256. As for the legal relevance of sex stereotyping,
we are beyond the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype associated
with their group, for,

															"'[i]n forbidding employers to discriminate against individuals
because of their sex, Congress intended to strike at the entire
spectrum of disparate treatment of men and women resulting from sex
stereotypes.'" Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702 , 435 U. S. 707 ,
n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). An employer who objects to
aggressiveness in women but whose positions require this trait
places women in an intolerable and impermissible Catch-22: out of a
job if they behave aggressively and out of a job if they do not.
Title VII lifts women out of this bind.

															Remarks at work that are based on sex stereotypes do not
inevitably prove that gender played a part in a particular
employment decision. The plaintiff must show that the employer
actually relied on her gender in making its decision. In making
this showing, stereotyped remarks can certainly be evidence that
gender played a part. In any event, the stereotyping in this case
did not simply consist of stray remarks. On the contrary, Hopkins
proved that Price Waterhouse invited partners to submit comments;
that some of the comments stemmed from sex stereotypes; that an
important part of the Policy Board's decision on Hopkins was an
assessment of the submitted comments; and that Price Waterhouse in
no way disclaimed reliance on the sex-linked evaluations. This is
not, as Price Waterhouse suggests, "discrimination in the air";
rather, it is, as Hopkins puts it, "discrimination brought to
ground and visited upon" an employee. Brief for Respondent 30. By
focusing on Hopkins' specific proof, however, we do not suggest a
limitation on the possible ways Page 490 U. S. 252 of proving that stereotyping played a motivating role in an
employment decision, and we refrain from deciding here which
specific facts, "standing alone," would or would not establish a
plaintiff's case, since such a decision is unnecessary in this
case. But see post at 490 U. S. 277 (O'CONNOR, J., concurring in judgment).

															As to the employer's proof, in most cases, the employer should
be able to present some objective evidence as to its probable
decision in the absence Page 490 U. S. 253 of an impermissible motive. [ Footnote 14 ] Moreover, proving " 'that the same
decision would have been justified . . . is not the same as proving
that the same decision would have been made.'" Givhan, 439
U.S. at 439 U. S. 416 ,
quoting Ayers v. Western Line Consolidated School
District, 555 F.2d 1309, 1315 (CA5 1977). An employer may not,
in other words, prevail in a mixed-motives case by offering a
legitimate and sufficient reason for its decision if that reason
did not motivate it at the time of the decision. Finally, an
employer may not meet its burden in such a case by merely showing
that, at the time of the decision, it was motivated only in part by
a legitimate reason. The very premise of a mixed-motives case is
that a legitimate reason was present, and indeed, in this case,
Price Waterhouse already has made this showing by convincing Judge
Gesell that Hopkins' interpersonal problems were a legitimate
concern. The employer instead must show that its legitimate reason,
standing alone, would have induced it to make the same
decision. III The courts below held that an employer who has allowed a
discriminatory impulse to play a motivating part in an employment
decision must prove by clear and convincing evidence that it would
have made the same decision in the absence of discrimination. We
are persuaded that the better rule is that the employer must make
this showing by a preponderance of the evidence.

															Conventional rules of civil litigation generally apply in Title
VII cases, see, e.g., United States Postal Service Bd. of
Governors v. Aikens, 460 U. S. 711 , 460 U. S. 716 (1983) (discrimination not to be "treat[ed] . . . differently from
other ultimate questions of fact"), and one of these rules is that
parties to civil litigation need only prove their case by a
preponderance of the evidence. See, e.g., Herman & MacLean
v. Huddleston, 459 U. S. 375 , 459 U. S. 390 (1983). Exceptions to this standard are uncommon, and in fact are
ordinarily recognized only when the government seeks to take
unusual coercive action -- action more dramatic than entering an
award of money damages or other conventional relief -- against an
individual. See Santosky v. Kramer, 455 U.
S. 745 , 455 U. S. 756 (1982) (termination of parental rights); Addington v.
Texas, 441 U. S. 418 , 441 U. S. 427 (1979) (involuntary commitment); Woodby v. INS, 385 U. S. 276 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 122 , 320 U. S. 125 (1943) (denaturalization). Only rarely have we required clear and
convincing proof where the action defended against seeks only
conventional relief, see, e.g., Gertz v. Robert Welch,
Inc., 418 U. S. 323 , 418 U. S. 342 (1974) (defamation), and we find it significant that, in such
cases, it was the defendant, rather than the plaintiff, who sought
the elevated standard of proof -- suggesting that this standard
ordinarily serves as a shield, rather than, as Hopkins seeks to use
it, as a sword.

															It is true, as Hopkins emphasizes, that we have noted the

															"clear distinction between the measure of proof necessary to
establish the fact that petitioner had sustained some damage and
the measure of proof necessary to enable the jury to fix the
amount." Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555 , 282 U. S. 562 (1931). Likewise, an Equal Employment Opportunity Commission (EEOC)
regulation does require federal agencies proved to have
violated Page 490 U. S. 254 Title VII to show by clear and convincing evidence that an
individual employee is not entitled to relief. See 29 CFR
§ 1613.271(c)(2) (1988). And finally, it is true that we have
emphasized the importance of make-whole relief for victims of
discrimination. See Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975). Yet each of these sources deals with the proper
determination of relief, rather than with the initial finding of
liability. This is seen most easily in the EEOC's regulation, which
operates only after an agency or the EEOC has found that "an
employee of the agency was discriminated against." See 29
CFR § 1613.271(c) (1988). Because we have held that, by proving
that it would have made the same decision in the absence of
discrimination, the employer may avoid a finding of liability
altogether, and not simply avoid certain equitable relief, these
authorities do not help Hopkins to show why we should elevate the
standard of proof for an employer in this position.

															Significantly, the cases from this Court that most resemble this
one, Mt. Healthy and Transportation Management, did not require clear and convincing proof. Mt. Healthy, 429 U.S. at 429 U. S. 287 ; Transportation Management, 462 U.S. at 462 U. S. 400 , 462 U. S. 403 .
We are not inclined to say that the public policy against firing
employees because they spoke out on issues of public concern or
because they affiliated with a union is less important than the
policy against discharging employees on the basis of their gender.
Each of these policies is vitally important, and each is adequately
served by requiring proof by a preponderance of the evidence.

															Although Price Waterhouse does not concretely tell us how its
proof was preponderant, even if it was not clear and convincing,
this general claim is implicit in its request for the less
stringent standard. Since the lower courts required Price
Waterhouse to make its proof by clear and convincing evidence, they
did not determine whether Price Waterhouse had proved by a
preponderance of the evidence that it would have placed Hopkins'
candidacy on hold even if it had not permitted Page 490 U. S. 255 sex-linked evaluations to play a part in the decisionmaking
process. Thus, we shall remand this case so that that determination
can be made. IV The District Court found that sex stereotyping "was permitted to
play a part" in the evaluation of Hopkins as a candidate for
partnership. 618 F. Supp. at 1120. Price Waterhouse disputes both
that stereotyping occurred and that it played any part in the
decision to place Hopkins' candidacy on hold. In the firm's view,
in other words, the District Court's factual conclusions are
clearly erroneous. We do not agree.

															In finding that some of the partners' comments reflected sex
stereotyping, the District Court relied in part on Dr. Fiske's
expert testimony. Without directly impugning Dr. Fiske's
credentials or qualifications, Price Waterhouse insinuates that a
social psychologist is unable to identify sex stereotyping in
evaluations without investigating whether those evaluations have a
basis in reality. This argument comes too late. At trial, counsel
for Price Waterhouse twice assured the court that he did not
question Dr. Fiske's expertise (App. 25), and failed to challenge
the legitimacy of her discipline. Without contradiction from Price
Waterhouse, Fiske testified that she discerned sex stereotyping in
the partners' evaluations of Hopkins, and she further explained
that it was part of her business to identify stereotyping in
written documents. Id. at 64. We are not inclined to
accept petitioner's belated and unsubstantiated characterization of
Dr. Fiske's testimony as "gossamer evidence" (Brief for Petitioner
20) based only on "intuitive hunches" ( id. at 44) and of
her detection of sex stereotyping as "intuitively divined"
( id. at 43). Nor are we disposed to adopt the dissent's
dismissive attitude toward Dr. Fiske's field of study and toward
her own professional integrity, see post at 490 U. S.
293 -294, n. 5. Page 490 U. S. 256 Indeed, we are tempted to say that Dr. Fiske's expert testimony
was merely icing on Hopkins' cake. It takes no special training to
discern sex stereotyping in a description of an aggressive female
employee as requiring "a course at charm school." Nor, turning to
Thomas Beyer's memorable advice to Hopkins, does it require
expertise in psychology to know that, if an employee's flawed
"interpersonal skills" can be corrected by a soft-hued suit or a
new shade of lipstick, perhaps it is the employee's sex, and not
her interpersonal skills, that has drawn the criticism. [ Footnote 15 ]

															Price Waterhouse also charges that Hopkins produced no evidence
that sex stereotyping played a role in the decision to place her
candidacy on hold. As we have stressed, however, Hopkins showed
that the partnership solicited evaluations from all of the firm's
partners; that it generally relied very heavily on such evaluations
in making its decision; that some of the partners' comments were
the product of stereotyping; and that the firm in no way disclaimed
reliance on those particular comments, either in Hopkins' case or
in the past. Certainly a plausible -- and, one might say,
inevitable -- conclusion to draw from this set of circumstances is
that the Policy Board, in making its decision, did in fact take
into account all of the partners' comments, including the comments
that were motivated by stereotypical notions about women's proper
deportment. [ Footnote
16 ] Page 490 U. S. 257 Price Waterhouse concedes that the proof in Transportation
Management adequately showed that the employer there had
relied on an impermissible motivation in firing the plaintiff.
Brief for Petitioner 45. But the only evidence in that case that a
discriminatory motive contributed to the plaintiff's discharge was
that the employer harbored a grudge toward the plaintiff on account
of his union activity; there was, contrary to Price Waterhouse's
suggestion, no direct evidence that that grudge had played a role
in the decision, and, in fact, the employer had given other reasons
in explaining the plaintiff's discharge. See 462 U.S. at 462 U. S. 396 .
If the partnership considers that proof sufficient, we do not know
why it takes such vehement issue with Hopkins' proof.

															Nor is the finding that sex stereotyping played a part in the
Policy Board's decision undermined by the fact that many of the
suspect comments were made by supporters, rather than detractors,
of Hopkins. A negative comment, even when made in the context of a
generally favorable review, nevertheless may influence the
decisionmaker to think less highly of the candidate; the Policy
Board, in fact, did not simply tally the "yesses" and "noes"
regarding a candidate, but carefully reviewed the content of the
submitted comments. The additional suggestion that the comments
were made by "persons outside the decisionmaking chain" (Brief for
Petitioner 48) -- and therefore could not have harmed Hopkins --
simply ignores the critical role that partners' comments played in
the Policy Board's partnership decisions.

															Price Waterhouse appears to think that we cannot affirm the
factual findings of the trial court without deciding that, instead
of being overbearing and aggressive and curt, Hopkins is, in fact,
kind and considerate and patient. If this is indeed its impression,
petitioner misunderstands the theory Page 490 U. S. 258 on which Hopkins prevailed. The District Judge acknowledged that
Hopkins' conduct justified complaints about her behavior as a
senior manager. But he also concluded that the reactions of at
least some of the partners were reactions to her as a woman
manager. Where an evaluation is based on a subjective assessment of
a person's strengths and weaknesses, it is simply not true that
each evaluator will focus on, or even mention, the same weaknesses.
Thus, even if we knew that Hopkins had "personality problems," this
would not tell us that the partners who cast their evaluations of
Hopkins in sex-based terms would have criticized her as sharply (or
criticized her at all) if she had been a man. It is not our job to
review the evidence and decide that the negative reactions to
Hopkins were based on reality; our perception of Hopkins' character
is irrelevant. We sit not to determine whether Ms. Hopkins is nice,
but to decide whether the partners reacted negatively to her
personality because she is a woman. V We hold that, when a plaintiff in a Title VII case proves that
her gender played a motivating part in an employment decision, the
defendant may avoid a finding of liability only by proving by a
preponderance of the evidence that it would have made the same
decision even if it had not taken the plaintiff's gender into
account. Because the courts below erred by deciding that the
defendant must make this proof by clear and convincing evidence, we
reverse the Court of Appeals' judgment against Price Waterhouse on
liability and remand the case to that court for further
proceedings. It is so ordered. [ Footnote 1 ]

															Before the time for reconsideration came, two of the partners in
Hopkins' office withdrew their support for her, and the office
informed her that she would not be reconsidered for partnership.
Hopkins then resigned. Price Waterhouse does not challenge the
Court of Appeals' conclusion that the refusal to repropose her for
partnership amounted to a constructive discharge. That court
remanded the case to the District Court for further proceedings to
determine appropriate relief, and those proceedings have been
stayed pending our decision. Brief for Petitioner 15, n. 3. We are
concerned today only with Price Waterhouse's decision to place
Hopkins' candidacy on hold. Decisions pertaining to advancement to
partnership are, of course, subject to challenge under Title VII. Hishon v. King & Spalding, 467 U. S.
69 (1984).

															[ Footnote 2 ]

															This question has, to say the least, left the Circuits in
disarray. The Third, Fourth, Fifth, and Seventh Circuits require a
plaintiff challenging an adverse employment decision to show that,
but for her gender (or race or religion or national origin), the
decision would have been in her favor. See, e.g., Bellissimo v.
Westinghouse Electric Corp., 764 F.2d 175, 179 (CA3 1985), cert. denied, 475 U.S. 1035 (1986); Ross v.
Communications Satellite Corp., 759 F.2d 355, 365-366 (CA4
1985); Peters v. Shreveport, 818 F.2d 1148, 1161 (CA5
1987); McQuillen v. Wisconsin Education Assn. Council, 830
F.2d 659, 664-665 (CA7 1987). The First, Second, Sixth, and
Eleventh Circuits, on the other hand, hold that, once the plaintiff
has shown that a discriminatory motive was a "substantial" or
"motivating" factor in an employment decision, the employer may
avoid a finding of liability only by proving that it would have
made the same decision even in the absence of discrimination. These
courts have either specified that the employer must prove its case
by a preponderance of the evidence or have not mentioned the proper
standard of proof. See, e.g., Fields v. Clark University, 817 F.2d 931, 936-937 (CA1 1987) ("motivating factor"); Berl v.
Westchester County, 849 F.2d 712, 714-715 (CA2 1988)
("substantial part"); Terbovitz v. Fiscal Court of Adair
County, Ky., 825 F.2d 111, 115 (CA6 1987) ("motivating
factor"); Bell v. Birmingham Linen Service, 715 F.2d 1552,
1557 (CA11 1983). The Court of Appeals for the District of Columbia
Circuit, as shown in this case, follows the same rule, except that
it requires that the employer's proof be clear and convincing,
rather than merely preponderant. 263 U.S.App.D.C. 321, 333-334, 825
F.2d 458, 470-471 (1987); see also Toney v. Block, 227
U.S.App.D.C. 273, 275, 705 F.2d 1364, 1366 (1983) (Scalia, J.) (it
would be "destructive of the purposes of [Title VII] to require the
plaintiff to establish . . . the difficult hypothetical proposition
that, had there been no discrimination, the employment decision
would have been made in his favor"). The Court of Appeals for the
Ninth Circuit also requires clear and convincing proof, but it goes
further by holding that a Title VII violation is made out as soon
as the plaintiff shows that an impermissible motivation played a
part in an employment decision -- at which point the employer may
avoid reinstatement and an award of backpay by proving that it
would have made the same decision in the absence of the unlawful
motive. See, e.g., Fadhl v. City and County of San
Francisco, 741 F.2d 1163, 1165-1166 (1984) (Kennedy, J.)
("significant factor"). Last, the Court of Appeals for the Eighth
Circuit draws the same distinction as the Ninth between the
liability and remedial phases of Title VII litigation, but requires
only a preponderance of the evidence from the employer. See,
e.g., Bibbs v. Block, 778 F.2d 1318, 1320-1324 (1985) (en
banc) ("discernible factor").

															[ Footnote 3 ]

															We disregard, for purposes of this discussion, the special
context of affirmative action.

															[ Footnote 4 ]

															Congress specifically declined to require that an employment
decision have been "for cause" in order to escape an affirmative
penalty (such as reinstatement or backpay) from a court. As
introduced in the House, the bill that became Title VII forbade
such affirmative relief if an "individual was . . . refused
employment or advancement, or was suspended or discharged for
cause. " H.R.Rep. No. 7152, 88th Cong., 1st Sess., 77 (1963)
(emphasis added). The phrase "for cause" eventually was deleted in
favor of the phrase "for any reason other than" one of the
enumerated characteristics. See 110 Cong.Rec. 2567-2571
(1964). Representative Celler explained that this substitution
"specif[ied] cause"; in his view, a court "cannot find any
violation of the act which is based on facts other . . . than
discrimination on the grounds of race, color, religion, or national
origin." Id. at 2567.

															[ Footnote 5 ]

															In this Court, Hopkins for the first time argues that Price
Waterhouse violated § 703(a)(2) when it subjected her to a biased
decisionmaking process that "tended to deprive" a woman of
partnership on the basis of her sex. Since Hopkins did not make
this argument below, we do not address it.

															[ Footnote 6 ]

															We made passing reference to a similar question in McDonald
v. Santa Fe Trail Transportation Co., 427 U.
S. 273 , 427 U. S. 282 ,
n. 10 (1976), where we stated that, when a Title VII plaintiff
seeks to show that an employer's explanation for a challenged
employment decision is pretextual, "no more is required to be shown
than that race was a but for' cause." This passage, however,
does not suggest that the plaintiff must show but-for
cause; it indicates only that, if she does so, she prevails. More
important, McDonald dealt with the question whether the
employer's stated reason for its decision was the reason for its
action; unlike the case before us today, therefore, McDonald did not involve mixed motives. This difference is
decisive in distinguishing this case from those involving
"pretext." See infra at 490 U. S. 247 ,
n. 12. [ Footnote 7 ]

															Congress specifically rejected an amendment that would have
placed the word "solely" in front of the words "because of." 110
Cong.Rec. 2728, 13837 (1964).

															[ Footnote 8 ]

															We have in the past acknowledged the authoritativeness of this
interpretive memorandum, written by the two bipartisan "captains"
of Title VII. See, e.g., Firefighters v. Stotts, 467 U. S. 561 , 467 U. S. 581 ,
n. 14 (1984).

															[ Footnote 9 ]

															Many of the legislators' statements, such as the memorandum
quoted in text, focused specifically on race, rather than on gender
or religion or national origin. We do not, however, limit their
statements to the context of race, but instead we take them as
general statements on the meaning of Title VII. The somewhat
bizarre path by which "sex" came to be included as a forbidden
criterion for employment -- it was included in an attempt to defeat
the bill, see C. & B. Whalen, The Longest Debate: A
Legislative History of the 1964 Civil Rights Act 115-117 (1985) --
does not persuade us that the legislators' statements pertaining to
race are irrelevant to cases alleging gender discrimination. The
amendment that added "sex" as one of the forbidden criteria for
employment was passed, of course, and the statute on its face
treats each of the enumerated categories exactly the same.

															By the same token, our specific references to gender throughout
this opinion, and the principles we announce, apply with equal
force to discrimination based on race, religion, or national
origin.

															[ Footnote 10 ]

															Hopkins argues that, once she made this showing, she was
entitled to a finding that Price Waterhouse had discriminated
against her on the basis of sex; as a consequence, she says, the
partnership's proof could only limit the relief she received. She
relies on Title VII's § 706(g), which permits a court to award
affirmative relief when it finds that an employer "has
intentionally engaged in or is intentionally engaging in an
unlawful employment practice," and yet forbids a court to order
reinstatement of, or backpay to,

															"an individual . . . if such individual was refused . . .
employment or advancement or was suspended or discharged for
any reason other than discrimination on account of race,
color, religion, sex, or national origin."

															42 U.S.C. § 2000e-5(g) (emphasis added). We do not take this
provision to mean that a court inevitably can find a violation of
the statute without having considered whether the employment
decision would have been the same absent the impermissible motive.
That would be to interpret § 706(g) -- a provision defining remedies -- to influence the substantive commands of the
statute. We think that this provision merely limits courts'
authority to award affirmative relief in those circumstances in
which a violation of the statute is not dependent upon the effect
of the employer's discriminatory practices on a particular
employee, as in pattern-or-practice suits and class actions.

															"The crucial difference between an individual's claim of
discrimination and a class action alleging a general pattern or
practice of discrimination is manifest. The inquiry regarding an
individual's claim is the reason for a particular employment
decision, while,"

															"at the liability stage of a pattern-or-practice trial, the
focus often will not be on individual hiring decisions, but on a
pattern of discriminatory decisionmaking." Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867 , 467 U. S. 876 (1984), quoting Teamsters v. United States, 431 U.
S. 324 , 431 U. S. 360 ,
n. 46 (1977).

															Without explicitly mentioning this portion of § 706(g), we have
in the past held that Title VII does not authorize affirmative
relief for individuals as to whom, the employer shows, the
existence of systemic discrimination had no effect. See Franks
v. Bowman Transportation Co., 424 U.
S. 747 , 424 U. S. 772 (1976); Teamsters v. United States, supra, at 431 U. S.
367 -371; East Texas Motor Freight System, Inc. v.
Rodriguez, 431 U. S. 395 , 431 U. S. 404 ,
n. 9 (1977). These decisions suggest that the proper focus of §
706(g) is on claims of systemic discrimination, not on charges of
individual discrimination. Cf. NLRB v. Transportation
Management Corp., 462 U. S. 393 (1983) (upholding the National Labor Relations Board's identical
interpretation of § 10(c) of the National Labor Relations Act, 29
U.S.C. § 160(c), which contains language almost identical to §
706(g)).

															[ Footnote 11 ]

															Given that both the plaintiff and defendant bear a burden of
proof in cases such as this one, it is surprising that the dissent
insists that our approach requires the employer to bear "the
ultimate burden of proof." Post at 490 U. S. 288 .
It is, moreover, perfectly consistent to say both that
gender was a factor in a particular decision when it was made and that, when the situation is viewed hypothetically and
after the fact, the same decision would have been made even in the
absence of discrimination. Thus, we do not see the "internal
inconsistency" in our opinion that the dissent perceives. See
post at 490 U. S.
285 -286. Finally, where liability is imposed because an
employer is unable to prove that it would have made the same
decision even if it had not discriminated, this is not an
imposition of liability "where sex made no difference to the
outcome." Post at 490 U. S. 285 . In our adversary system, where a party
has the burden of proving a particular assertion and where that
party is unable to meet its burden, we assume that that assertion
is inaccurate. Thus, where an employer is unable to prove its claim
that it would have made the same decision in the absence of
discrimination, we are entitled to conclude that gender did make a difference to the outcome.

															[ Footnote 12 ]

															Nothing in this opinion should be taken to suggest that a case
must be correctly labeled as either a "pretext" case or a
"mixed-motives" case from the beginning in the District Court;
indeed, we expect that plaintiffs often will allege, in the
alternative, that their cases are both. Discovery often will be
necessary before the plaintiff can know whether both legitimate and
illegitimate considerations played a part in the decision against
her. At some point in the proceedings, of course, the District
Court must decide whether a particular case involves mixed motives.
If the plaintiff fails to satisfy the factfinder that it is more
likely than not that a forbidden characteristic played a part in
the employment decision, then she may prevail only if she proves,
following Burdine, that the employer's stated reason for
its decision is pretextual. The dissent need not worry that this
evidentiary scheme, if used during a jury trial, will be so
impossibly confused and complex as it imagines. See, e.g.,
post at 490 U. S. 292 .
Juries long have decided cases in which defendants raised
affirmative defenses. The dissent fails, moreover, to explain why
the evidentiary scheme that we endorsed over 10 years ago in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.
S. 274 (1977), has not proved unworkable in that
context, but would be hopelessly complicated in a case brought
under federal antidiscrimination statutes.

															[ Footnote 13 ]

															After comparing this description of the plaintiff's proof to
that offered by JUSTICE O'CONNOR'S opinion concurring in the
judgment, post at 490 U. S. 276 -277, we do not understand why the
concurrence suggests that they are meaningfully different from each
other, see post at 490 U. S. 275 , 490 U. S.
277 -279. Nor do we see how the inquiry that we have
described is "hypothetical," see post at 490 U. S. 283 ,
n. 1. It seeks to determine the content of the entire set of
reasons for a decision, rather than shaving off one reason in an
attempt to determine what the decision would have been in the
absence of that consideration. The inquiry that we describe thus
strikes us as a distinctly nonhypothetical one.

															[ Footnote 14 ]

															JUSTICE WHITE'S suggestion, post at 490 U. S. 261 ,
that the employer's own testimony as to the probable decision in
the absence of discrimination is due special credence where the
court has, contrary to the employer's testimony, found that an
illegitimate factor played a part in the decision, is baffling.

															[ Footnote 15 ]

															We reject the claim, advanced by Price Waterhouse here and by
the dissenting judge below, that the District Court clearly erred
in finding that Beyer was "responsible for telling [Hopkins] what
problems the Policy Board had identified with her candidacy." 618
F. Supp. at 1117. This conclusion was reasonable in light of the
testimony at trial of a member of both the Policy Board and the
Admissions Committee, who stated that he had "no doubt" that Beyer
would discuss with Hopkins the reasons for placing her candidacy on
hold, and that Beyer "knew exactly where the problems were"
regarding Hopkins. Tr. 316.

															[ Footnote 16 ]

															We do not understand the dissenters' dissatisfaction with the
District Judge's statements regarding the failure of Price
Waterhouse to "sensitize" partners to the dangers of sexism. Post at 490 U. S. 294 .
Made in the context of determining that Price Waterhouse had not
disclaimed reliance on sex-based evaluations, and following the
judge's description of the firm's history of condoning such
evaluations, the judge's remarks seem to us justified.

															JUSTICE WHITE, concurring in the judgment.

															In my view, to determine the proper approach to causation in
this case, we need look only to the Court's opinion in Mt.
Healthy City Bd. of Ed. v. Doyle, 429 U.
S. 274 (1977). In Mt. Healthy, a public
employee was not rehired, in part Page 490 U. S. 259 because of his exercise of First Amendment rights and in part
because of permissible considerations. The Court rejected a rule of
causation that focused "solely on whether protected conduct played
a part, substantial' or otherwise, in a decision not to
rehire," on the grounds that such a rule could make the employee
better off by exercising his constitutional rights than by doing
nothing at all. Id. at 429 U. S. 285 .
Instead, the Court outlined the following approach: "Initially, in this case, the burden was properly placed upon
respondent to show that his conduct was constitutionally protected,
and that his conduct was a 'substantial factor' -- or, to put it in
other words, that it was a 'motivating factor' in the Board's
decision not to rehire him. Respondent having carried that burden,
however, the District Court should have gone on to determine
whether the Board had shown by a preponderance of the evidence that
it would have reached the same decision as to respondent's
reemployment even in the absence of the protected conduct." Id. at 429 U. S. 287 (footnote omitted).

															It is not necessary to get into semantic discussions on whether
the Mt. Healthy approach is "but-for" causation in another
guise or creates an affirmative defense on the part of the employer
to see its clear application to the issues before us in this case.
As in Mt. Healthy, the District Court found that the
employer was motivated by both legitimate and illegitimate factors.
And here, as in Mt. Healthy, and as the Court now holds,
Hopkins was not required to prove that the illegitimate factor was
the only, principal, or true reason for petitioner's action.
Rather, as JUSTICE O'CONNOR states, her burden was to show that the
unlawful motive was a substantial factor in the adverse
employment action. The District Court, as its opinion was construed
by the Court of Appeals, so found, 263 U.S.App.D.C. 321, 333, 334,
825 F.2d 458, 470, 471 (1987), and I agree that the finding was
supported by the record. The burden of persuasion then Page 490 U. S. 260 should have shifted to Price Waterhouse to prove "by a
preponderance of the evidence that it would have reached the same
decision . . . in the absence of" the unlawful motive. Mt.
Healthy, supra, at 429 U. S.
287 .

															I agree with JUSTICE BRENNAN that applying this approach to
causation in Title VII cases is not a departure from, and does not
require modification of, the Court's holdings in Texas Dept. of
Community Affairs v. Burdine, 450 U.
S. 248 (1981), and McDonnell Douglas Corp. v.
Green, 411 U. S. 792 (1973). The Court has made clear that "mixed-motives" cases such as
the present one are different from pretext cases such as McDonnell Douglas and Burdine. In pretext cases,
"the issue is whether either illegal or legal motives, but not
both, were the true' motives behind the decision." NLRB v.
Transportation Management Corp., 462 U.
S. 393 , 462 U. S. 400 ,
n. 5 (1983). In mixed-motives cases, however, there is no one
"true" motive behind the decision. Instead, the decision is a
result of multiple factors, at least one of which is legitimate. It
can hardly be said that our decision in this case is a departure
from cases that are "inapposite." Ibid. I also disagree
with the dissent's assertion that this approach to causation is
inconsistent with our statement in Burdine that "[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff."

															450 U.S. at 450 U. S. 253 .
As we indicated in Transportation Management Corp., the
showing required by Mt. Healthy does not improperly shift
from the plaintiff the ultimate burden of persuasion on whether the
defendant intentionally discriminated against him or her. See 462 U.S. at 462 U. S. 400 ,
n. 5.

															Because the Court of Appeals required Price Waterhouse to prove
by clear and convincing evidence that it would have reached the
same employment decision in the absence of the improper motive,
rather than merely requiring proof by a preponderance of the
evidence, as in Mt. Healthy, I concur in the judgment
reversing this case in part and remanding. Page 490 U. S. 261 With respect to the employer's burden, however, the plurality
seems to require, at least in most cases, that the employer submit
objective evidence that the same result would have occurred absent
the unlawful motivation. Ante at 490 U. S. 252 .
In my view, however, there is no special requirement that the
employer carry its burden by objective evidence. In a mixed-motives
case, where the legitimate motive found would have been ample
grounds for the action taken, and the employer credibly testifies
that the action would have been taken for the legitimate reasons
alone, this should be ample proof. This would even more plainly be
the case where the employer denies any illegitimate motive in the
first place, but the court finds that illegitimate, as well as
legitimate, factors motivated the adverse action. * * I agree with the plurality that if the employer carries this
burden, there has been no violation of Title VII.

															JUSTICE O'CONNOR, concurring in the judgment.

															I agree with the plurality that, on the facts presented in this
case, the burden of persuasion should shift to the employer to
demonstrate by a preponderance of the evidence that it would have
reached the same decision concerning Ann Hopkins' candidacy absent
consideration of her gender. I further agree that this burden shift
is properly part of the liability phase of the litigation. I thus
concur in the judgment of the Court. My disagreement stems from the
plurality's conclusions concerning the substantive requirement of
causation under the statute and its broad statements regarding the
applicability of the allocation of the burden of proof applied in
this case. The evidentiary rule the Court adopts today should be
viewed as a supplement to the careful framework established by our
unanimous decisions in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), for use in cases such as this one where the employer has
created uncertainty as to causation by knowingly giving Page 490 U. S. 262 substantial weight to an impermissible criterion. I write
separately to explain why I believe such a departure from the McDonnell Douglas standard is justified in the
circumstances presented by this and like cases, and to express my
views as to when and how the strong medicine of requiring the
employer to bear the burden of persuasion on the issue of causation
should be administered. I Title VII provides in pertinent part:

															"It shall be an unlawful employment practice for an employer . .
. to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex,
or national origin."

															42 U.S.C. § 2000e-2(a) (emphasis added). The legislative history
of Title VII bears out what its plain language suggests: a
substantive violation of the statute only occurs when consideration
of an illegitimate criterion is the "but-for" cause of an adverse
employment action. The legislative history makes it clear that
Congress was attempting to eradicate discriminatory actions in the
employment setting, not mere discriminatory thoughts. Critics of
the bill that became Title VII labeled it a "thought control bill,"
and argued that it created a "punishable crime that does not
require an illegal external act as a basis for judgment." 100
Cong.Rec. 7254 (1964) (remarks of Sen. Ervin). Senator Case, whose
views the plurality finds so persuasive elsewhere, responded:

															"The man must do or fail to do something in regard to
employment. There must be some specific external act, more than a
mental act. Only if he does the act because of the grounds stated
in the bill would there be any legal consequences." Ibid. Thus, I disagree with the plurality's dictum that
the words "because of" do not mean "but-for" causation; manifestly
they Page 490 U. S. 263 do. See Sheet Metal Workers v. EEOC, 478 U.
S. 421 , 478 U. S. 499 (1986) (WHITE, J., dissenting) ("[T]he general policy under Title
VII is to limit relief for racial discrimination in employment
practices to actual victims of the discrimination"). We should not,
and need not, deviate from that policy today. The question for
decision in this case is what allocation of the burden of
persuasion on the issue of causation best conforms with the intent
of Congress and the purposes behind Title VII.

															The evidence of congressional intent as to which party should
bear the burden of proof on the issue of causation is considerably
less clear. No doubt, as a general matter, Congress assumed that
the plaintiff in a Title VII action would bear the burden of proof
on the elements critical to his or her case. As the dissent points
out, post at 287, n. 3, the interpretative memorandum
submitted by sponsors of Title VII indicates that "the plaintiff, as in any civil case, would have the burden of proving
that discrimination had occurred." 110 Cong.Rec. 7214 (1964)
(emphasis added). But in the area of tort liability, from whence
the dissent's "but-for" standard of causation is derived, see
post at 282, the law has long recognized that, in certain
"civil cases," leaving the burden of persuasion on the plaintiff to
prove "but-for" causation would be both unfair and destructive of
the deterrent purposes embodied in the concept of duty of care.
Thus, in multiple causation cases, where a breach of duty has been
established, the common law of torts has long shifted the burden of
proof to multiple defendants to prove that their negligent actions
were not the "but-for" cause of the plaintiff's injury. See
e.g., Summers v. Tice, 33 Cal. 2d 80 ,
84-87, 199 P.2d 1, 3-4 (1948). The same rule has been applied where
the effect of a defendant's tortious conduct combines with a force
of unknown or innocent origin to produce the harm to the plaintiff. See Kingston v. Chicago & N.W. R. Co., 191 Wis. 610,
616, 211 N.W. 913, 915 (1927) ("Granting that the union of that
fire [caused by defendant's Page 490 U. S. 264 negligence] with another of natural origin, or with another of
much greater proportions, is available as a defense, the burden is
on the defendant to show that . . . the fire set by him was not the
proximate cause of the damage"). See also 2 J. Wigmore,
Select Cases on the Law of Torts, § 153, p. 865 (1912) ("When two
or more persons by their acts are possibly the sole cause of a
harm, or when two or more acts of the same person are possibly the
sole cause, and the plaintiff has introduced evidence that one of
the two persons, or one of the same person's two acts, is culpable,
then the defendant has the burden of proving that the other person,
or his other act, was the sole cause of the harm").

															While requiring that the plaintiff in a tort suit or a Title VII
action prove that the defendant's "breach of duty" was the
"but-for" cause of an injury does not generally hamper effective
enforcement of the policies behind those causes of action,

															"at other times, the [but-for] test demands the impossible. It
challenges the imagination of the trier to probe into a purely
fanciful and unknowable state of affairs. He is invited to make an
estimate concerning facts that concededly never existed. The very
uncertainty as to what might have happened opens the door
wide for conjecture. But when conjecture is demanded it can be
given a direction that is consistent with the policy considerations
that underlie the controversy."

															Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. 60, 67
(1956).

															Like the common law of torts, the statutory employment "tort"
created by Title VII has two basic purposes. The first is to deter
conduct which has been identified as contrary to public policy and
harmful to society as a whole. As we have noted in the past, the
award of backpay to a Title VII plaintiff provides

															"the spur or catalyst which causes employers and unions to
self-examine and to self-evaluate their employment practices and to
endeavor to eliminate, so far as Page 490 U. S. 265 possible, the last vestiges"

															of discrimination in employment. Albemarle Paper Co. v.
Moody, 422 U. S. 405 , 422 U. S.
417 -418 (1975) (citation omitted). The second goal of
Title VII is "to make persons whole for injuries suffered on
account of unlawful employment discrimination." Id. at 422 U. S.
418 .

															Both these goals are reflected in the elements of a disparate
treatment action. There is no doubt that Congress considered
reliance on gender or race in making employment decisions an evil
in itself. As Senator Clark put it, "[t]he bill simply eliminates
consideration of color [or other forbidden criteria] from the
decision to hire or promote." 110 Cong.Rec. 7218 (1964). See
also id. at 13088 (remarks of Sen. Humphrey) ("What the bill
does . . . is simply to make it an illegal practice to use race as
a factor in denying employment"). Reliance on such factors is
exactly what the threat of Title VII liability was meant to deter.
While the main concern of the statute was with employment
opportunity, Congress was certainly not blind to the stigmatic harm
which comes from being evaluated by a process which treats one as
an inferior by reason of one's race or sex. This Court's decisions
under the Equal Protection Clause have long recognized that,
whatever the final outcome of a decisional process, the inclusion
of race or sex as a consideration within it harms both society and
the individual. See Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). At the same time, Congress clearly conditioned legal
liability on a determination that the consideration of an
illegitimate factor caused a tangible employment injury of
some kind.

															Where an individual disparate treatment plaintiff has shown by a
preponderance of the evidence that an illegitimate criterion was a substantial factor in an adverse employment decision, the
deterrent purpose of the statute has clearly been triggered. More
importantly, as an evidentiary matter, a reasonable factfinder
could conclude that, absent further explanation, the employer's
discriminatory motivation "caused" the employment decision. The
employer has Page 490 U. S. 266 not yet been shown to be a violator, but neither is it entitled
to the same presumption of good faith concerning its employment
decisions which is accorded employers facing only circumstantial
evidence of discrimination. Both the policies behind the statute
and the evidentiary principles developed in the analogous area of
causation in the law of torts suggest that, at this point, the
employer may be required to convince the factfinder that, despite
the smoke, there is no fire.

															We have given recognition to these principles in our cases which
have discussed the "remedial phase" of class action disparate
treatment cases. Once the class has established that discrimination
against a protected group was essentially the employer's "standard
practice," there has been harm to the group, and injunctive relief
is appropriate. But, as to the individual members of the class, the
liability phase of the litigation is not complete. See Dillon
v. Coles, 746 F.2d 998, 1004 (CA3 1984) ("It is misleading to
speak of the additional proof required by an individual class
member for relief as being a part of the damage phase; that
evidence is actually an element of the liability portion of the
case") (footnote omitted). Because the class has already
demonstrated that, as a rule, illegitimate factors were considered
in the employer's decisions, the burden shifts to the employer "to
demonstrate that the individual applicant was denied an employment
opportunity for legitimate reasons." Teamsters v. United
States, 431 U. S. 324 , 431 U. S. 362 (1977). See also Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 772 (1976).

															The individual members of a class action disparate treatment
case stand in much the same position as Ann Hopkins here. There has
been a strong showing that the employer has done exactly what Title
VII forbids, but the connection between the employer's illegitimate
motivation and any injury to the individual plaintiff is unclear.
At this point, calling upon the employer to show that despite
consideration of illegitimate factors the individual plaintiff
would not have been hired or promoted in any event hardly seems
"unfair" or Page 490 U. S. 267 contrary to the substantive command of the statute. In fact, an
individual plaintiff who has shown that an illegitimate factor
played a substantial role in the decision in her case has proved more than the class member in a Teamsters -type
action. The latter receives the benefit of a burden-shift to the
defendant based on the likelihood that an illegitimate
criterion was a factor in the individual employment decision.

															There is a tension between the Franks and Teamsters line of decisions and the individual disparate
treatment cases cited by the dissent. See post at 490 U. S.
286 -289. Logically, under the dissent's view, each
member of a disparate treatment class action would have to show
"but-for" causation as to his or her individual employment
decision, since it is not an element of the pattern or practice
proof of the entire class and it is statutorily mandated that the
plaintiff bear the burden of proof on this issue throughout the
litigation. While the Court has properly drawn a distinction
between the elements of a class action claim and an individual
disparate treatment claim, see Cooper v. Federal Reserve Bank
of Richmond, 467 U. S. 867 , 467 U. S.
873 -878 (1984), and I do not suggest the wholesale
transposition of rules from one setting to the other, our decisions
in Teamsters and Franks do indicate a recognition
that presumptions shifting the burden of persuasion based on
evidentiary probabilities and the policies behind the statute are
not alien to our Title VII jurisprudence.

															Moreover, placing the burden on the defendant in this case to
prove that the same decision would have been justified by
legitimate reasons is consistent with our interpretation of the
constitutional guarantee of equal protection. Like a disparate
treatment plaintiff, one who asserts that governmental action
violates the Equal Protection Clause must show that he or she is
"the victim of intentional discrimination." Burdine, 450
U.S. at 450 U. S. 256 . Compare post at 490 U. S. 286 , 490 U. S. 289 (KENNEDY, J., dissenting), with Washington v. Davis, 426 U. S. 229 , 426 U. S. 240 (1976). In Alexander v. Louisiana, 405 U.
S. 625 (1972), we dealt with a criminal defendant's
allegation that Page 490 U. S. 268 members of his race had been invidiously excluded from the grand
jury which indicted him, in violation of the Equal Protection
Clause. In addition to the statistical evidence presented by
petitioner in that case, we noted that the State's "selection
procedures themselves were not racially neutral." Id. at 405 U. S. 630 .
Once the consideration of race in the decisional process had been
established, we held that

															"the burden of proof shifts to the State to rebut the
presumption of unconstitutional action by showing that permissible
racially neutral selection criteria and procedures have produced
the monochromatic result." Id. at 405 U. S.
632 .

															We adhered to similar principles in Arlington Heights v.
Metropolitan Housing Corp., 429 U. S. 252 (1977), a case which, like this one, presented the problems of
motivation and causation in the context of a multimember
decisionmaking body authorized to consider a wide range of factors
in arriving at its decisions. In Arlington Heights, a
group of minority plaintiffs claimed that a municipal governing
body's refusal to rezone a plot of land to allow for the
construction of low-income integrated housing was racially
motivated. On the issue of causation, we indicated that the
plaintiff was not required

															"to prove that the challenged action rested solely on racially
discriminatory purposes. Rarely can it be said that a legislature
or administrative body operating under a broad mandate made a
decision motivated solely by a single concern, or even that a
particular purpose was the 'dominant' or 'primary' one. In fact, it
is because legislators and administrators are properly concerned
with balancing numerous competing considerations that courts
refrain from reviewing the merits of their decisions, absent a
showing of arbitrariness or irrationality. But racial
discrimination is not just another competing consideration. When
there is a proof that a discriminatory purpose has been a
motivating factor in the decision, Page 490 U. S. 269 this judicial deference is no longer justified." Id. at 429 U. S.
265 -266 (citation omitted).

															If the strong presumption of regularity and rationality of
legislative decisionmaking must give way in the face of evidence
that race has played a significant part in a legislative decision,
I simply cannot believe that Congress intended Title VII to accord more deference to a private employer in the face of
evidence that its decisional process has been substantially
infected by discrimination. Indeed, where a public employee brings
a "disparate treatment" claim under 42 U.S.C. § 1983 and the Equal
Protection Clause, the employee is entitled to the favorable
evidentiary framework of Arlington Heights. See, e.g.,
Hervey v. Little Rock, 787 F.2d 1223, 1233-1234 (CA8 1986)
(applying Arlington Heights to public employee's claim of
sex discrimination in promotion decision); Lee v. Russell
County Bd. of Education, 684 F.2d 769, 773-774 (CA11 1982)
(applying Arlington Heights to public employees' claims of
race discrimination in discharge case). Under the dissent's reading
of Title VII, Congress' extension of the coverage of the statute to
public employers in 1972 has placed these employees under a less
favorable evidentiary regime. In my view, nothing in the language,
history, or purpose of Title VII prohibits adoption of an
evidentiary rule which places the burden of persuasion on the
defendant to demonstrate that legitimate concerns would have
justified an adverse employment action where the plaintiff has
convinced the factfinder that a forbidden factor played a
substantial role in the employment decision. Even the dissenting
judge below "[had] no quarrel with [the] principle" that

															"a party with one permissible motive and one unlawful one may
prevail only by affirmatively proving that it would have acted as
it did even if the forbidden motive were absent."

															263 U.S.App.D.C. 321, 341, 825 F.2d 458, 478 (1987) (Williams,
J. dissenting). Page 490 U. S. 270 II The dissent's summary of our individual disparate treatment
cases to date is fair and accurate, and amply demonstrates that the
rule we adopt today is at least a change in direction from some of
our prior precedents. See post at 490 U. S.
286 -289. We have indeed emphasized in the past that, in
an individual disparate treatment action, the plaintiff bears the
burden of persuasion throughout the litigation. Nor have we
confined the word "pretext" to the narrow definition which the
plurality attempts to pin on it today. See ante at 490 U. S.
244 -247. McDonnell Douglas and Burdine clearly contemplated that a disparate treatment plaintiff could
show that the employer's proffered explanation for an event was not
"the true reason," either because it never motivated the employer
in its employment decisions or because it did not do so in a
particular case. McDonnell Douglas and Burdine assumed that the plaintiff would bear the burden of persuasion as
to both these attacks, and we clearly depart from that framework
today. Such a departure requires justification, and its outlines
should be carefully drawn.

															First, McDonnell Douglas itself dealt with a situation
where the plaintiff presented no direct evidence that the employer
had relied on a forbidden factor under Title VII in making an
employment decision. The prima facie case established
there was not difficult to prove, and was based only on the
statistical probability that, when a number of potential causes for
an employment decision are eliminated, an inference arises that an
illegitimate factor was, in fact, the motivation behind the
decision. See Teamsters, 431 U.S. at 431 U. S. 358 ,
n. 44 ("[T]he McDonnell Douglas formula does not require
direct proof of discrimination"). In the face of this inferential
proof, the employer's burden was deemed to be only one of
production; the employer must articulate a legitimate reason for
the adverse employment action. See Furnco Construction Corp. v.
Waters, 438 U. S. 567 , 438 U. S. 577 (1978). The plaintiff must then be given an

															"opportunity to demonstrate Page 490 U. S. 271 by competent evidence that the presumptively valid reasons for
his rejection were, in fact, a coverup for a racially
discriminatory decision." McDonnell Douglas, 411 U.S. at 411 U. S. 805 .
Our decision in Texas Dept. of Community Affairs v.
Burdine, 450 U. S. 248 (1981), also involved the "narrow question" whether, after a
plaintiff had carried the "not onerous" burden of establishing the prima facie case under McDonnell Douglas, the
burden of persuasion should be shifted to the employer to prove
that a legitimate reason for the adverse employment action existed.
450 U.S. at 450 U. S. 250 .
As the discussion of Teamsters and Arlington
Heights indicates, I do not think that the employer is
entitled to the same presumption of good faith where there is
direct evidence that it has placed substantial reliance on factors
whose consideration is forbidden by Title VII.

															The only individual disparate treatment case cited by the
dissent which involved the kind of direct evidence of
discriminatory animus with which we are confronted here is United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 460 U. S.
713 -714, n. 2 (1983). The question presented to the
Court in that case involved only a challenge to the elements of the prima facie case under McDonnell Douglas and Burdine, see Pet. for Cert. in United States Postal
Service Bd. of Governors v. Aikens, O.T. 1981, No. 81-1044,
and the question we confront today was neither briefed nor argued
to the Court. As should be apparent, the entire purpose of the McDonnell Douglas prima facie case is to compensate for
the fact that direct evidence of intentional discrimination is hard
to come by. That the employer's burden in rebutting such an
inferential case of discrimination is only one of production does
not mean that the scales should be weighted in the same manner
where there is direct evidence of intentional
discrimination. Indeed, in one Age Discrimination in Employment Act
case, the Court seemed to indicate that "the McDonnell
Douglas test is inapplicable where the plaintiff presents
direct evidence of discrimination." Trans
World Page 490 U. S. 272 Airlines, Inc. v. Thurston, 469 U.
S. 111 , 469 U. S. 121 (1985). See also East Texas Motor Freight System, Inc. v.
Rodriguez, 431 U. S. 395 , 431 U. S.
403 -404, n. 9 (1977).

															Second, the facts of this case, and a growing number like it
decided by the Courts of Appeals, convince me that the evidentiary
standard I propose is necessary to make real the promise of McDonnell Douglas that,

															"[i]n the implementation of [employment] decisions, it is
abundantly clear that Title VII tolerates no . . . discrimination,
subtle or otherwise."

															411 U.S. at 411 U. S. 801 .
In this case, the District Court found that a number of the
evaluations of Ann Hopkins submitted by partners in the firm
overtly referred to her failure to conform to certain gender
stereotypes as a factor militating against her election to the
partnership. 618 F.
Supp. 1109 , 1116-1117 (DC 1985). The District Court further
found that these evaluations were given "great weight" by the
decisionmakers at Price Waterhouse. Id. at 1118. In
addition, the District Court found that the partner responsible for
informing Hopkins of the factors which caused her candidacy to be
placed on hold indicated that her "professional" problems would be
solved if she would "walk more femininely, talk more femininely,
wear make-up, have her hair styled, and wear jewelry." Id. at 1117 (footnote omitted). As the Court of Appeals characterized
it, Ann Hopkins proved that Price Waterhouse

															"permitt[ed] stereotypical attitudes towards women to play a
significant, though unquantifiable, role in its decision not to
invite her to become a partner."

															263 U.S.App.D.C. at 324, 825 F.2d at 461.

															At this point, Ann Hopkins had taken her proof as far as it
could go. She had proved discriminatory input into the decisional
process, and had proved that participants in the process considered
her failure to conform to the stereotypes credited by a number of
the decisionmakers had been a substantial factor in the decision.
It is as if Ann Hopkins were sitting in the hall outside the room
where partnership decisions were being made. As the partners filed
in to consider Page 490 U. S. 273 her candidacy, she heard several of them make sexist remarks in
discussing her suitability for partnership. As the decisionmakers
exited the room, she was told by one of those privy to the
decisionmaking process that her gender was a major reason for the
rejection of her partnership bid. If, as we noted in Teamsters, "[p]resumptions shifting the burden of proof are often created
to reflect judicial evaluations of probabilities and to conform
with a party's superior access to the proof,"

															431 U.S. at 431 U. S. 359 ,
n. 45, one would be hard-pressed to think of a situation where it
would be more appropriate to require the defendant to show that its
decision would have been justified by wholly legitimate
concerns.

															Moreover, there is mounting evidence in the decisions of the
lower courts that respondent here is not alone in her inability to
pinpoint discrimination as the precise cause of her injury, despite
having shown that it played a significant role in the decisional
process. Many of these courts, which deal with the evidentiary
issues in Title VII cases on a regular basis, have concluded that
placing the risk of nonpersuasion on the defendant in a situation
where uncertainty as to causation has been created by its
consideration of an illegitimate criterion makes sense as a rule of
evidence, and furthers the substantive command of Title VII. See, e.g., Bell v. Birmingham Linen Service, 715 F.2d
1552, 1556 (CA11 1983) (Tjoflat, J.) ("It would be illogical,
indeed ironic, to hold a Title VII plaintiff presenting direct
evidence of a defendant's intent to discriminate to a more
stringent burden of proof, or to allow a defendant to meet that
direct proof by merely articulating, but not proving, legitimate,
nondiscriminatory reasons for its action"). Particularly in the
context of the professional world, where decisions are often made
by collegial bodies on the basis of largely subjective criteria,
requiring the plaintiff to prove that any one factor was
the definitive cause of the decisionmakers' action may be
tantamount to declaring Title VII inapplicable to such decisions. See, e.g., Fields v. Clark University, 817 F.2d 931,
935-937 Page 490 U. S. 274 (CA1 1987) (where plaintiff produced "strong evidence" that
sexist attitudes infected faculty tenure decision, burden properly
shifted to defendant to show that it would have reached the same
decision absent discrimination); Thompkins v. Morris Brown
College, 752 F.2d 558, 563 (CA11 1985) (direct evidence of
discriminatory animus in decision to discharge college professor
shifted burden of persuasion to defendant).

															Finally, I am convinced that a rule shifting the burden to the
defendant where the plaintiff has shown that an illegitimate
criterion was a "substantial factor" in the employment decision
will not conflict with other congressional policies embodied in
Title VII. Title VII expressly provides that an employer need not
give preferential treatment to employees or applicants of any race,
color, religion, sex, or national origin in order to maintain a
workforce in balance with the general population. See 42
U.S.C. § 2000e-2(j). The interpretive memorandum, whose
authoritative force is noted by the plurality, see ante at 490 U. S. 243 ,
n. 8, specifically provides:

															"There is no requirement in title VII that an employer maintain
a racial balance in his workforce. On the contrary, any deliberate
attempt to maintain a racial balance, whatever such a balance may
be, would involve a violation of title VII because maintaining such
a balance would require an employer to hire or refuse to hire on
the basis of race."

															110 Cong.Rec. 7213 (1964).

															Last Term, in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988), the Court unanimously concluded that the disparate impact
analysis first enunciated in Griggs v. Duke Power Co., 401 U. S. 424 (1971), should be extended to subjective or discretionary selection
processes. At the same time, a plurality of the Court indicated
concern that the focus on bare statistics in the disparate impact
setting could force employers to adopt "inappropriate prophylactic
measures" in violation of § 2000e-2(j). The plurality went on to
emphasize that, in a disparate impact case, the plaintiff may not
simply Page 490 U. S. 275 point to a statistical disparity in the employer's workforce.
Instead, the plaintiff must identify a particular employment
practice and

															"must offer statistical evidence of a kind and degree sufficient
to show that the practice in question has caused the exclusion of
applicants for jobs or promotions because of their membership in a
protected group."

															487 U.S. at 487 U. S. 994 .
The plurality indicated that

															"the ultimate burden of proving that discrimination against a
protected group has been caused by a specific employment practice
remains with the plaintiff at all times." Id. at 487 U. S.
997 .

															I believe there are significant differences between shifting the
burden of persuasion to the employer in a case resting purely on
statistical proof, as in the disparate impact setting, and shifting
the burden of persuasion in a case like this one, where an employee
has demonstrated by direct evidence that an illegitimate factor
played a substantial role in a particular employment decision.
First, the explicit consideration of race, color, religion, sex, or
national origin in making employment decisions "was the most
obvious evil Congress had in mind when it enacted Title VII." Teamsters, 431 U.S. at 431 U. S. 335 ,
n. 15. While the prima facie case under McDonnell
Douglas and the statistical showing of imbalance involved in a
disparate impact case may both be indicators of discrimination or
its "functional equivalent," they are not, in and of themselves,
the evils Congress sought to eradicate from the employment setting.
Second, shifting the burden of persuasion to the employer in a
situation like this one creates no incentive to preferential
treatment in violation of § 2000e(2)(j). To avoid bearing the
burden of justifying its decision, the employer need not seek
racial or sexual balance in its workforce; rather, all it need do
is avoid substantial reliance on forbidden criteria in making its
employment decisions.

															While the danger of forcing employers to engage in unwarranted
preferential treatment is thus less dramatic in this setting than
in the situation the Court faced in Watson, it is far from
wholly illusory. Based on its misreading of Page 490 U. S. 276 the words "because of " in the statute, see ante at 490 U. S.
240 -242, the plurality appears to conclude that, if a
decisional process is "tainted" by awareness of sex or race in any
way, the employer has violated the statute, and Title VII thus
commands that the burden shift to the employer to justify its
decision. Ante at 490 U. S. 250 -252. The plurality thus effectively reads
the causation requirement out of the statute and then replaces it
with an "affirmative defense." Ante at 490 U. S.
244 -247.

															In my view, in order to justify shifting the burden on the issue
of causation to the defendant, a disparate treatment plaintiff must
show by direct evidence that an illegitimate criterion was a
substantial factor in the decision. As the Court of Appeals noted
below:

															"While most circuits have not confronted the question squarely,
the consensus among those that have is that, once a Title VII
plaintiff has demonstrated by direct evidence that discriminatory
animus played a significant or substantial role in the employment
decision, the burden shifts to the employer to show that the
decision would have been the same absent discrimination."

															263 U.S.App.D.C. at 333-344, 825 F.2d at 470-471. Requiring that
the plaintiff demonstrate that an illegitimate factor played a
substantial role in the employment decision identifies those
employment situations where the deterrent purpose of Title VII is
most clearly implicated. As an evidentiary matter, where a
plaintiff has made this type of strong showing of illicit
motivation, the factfinder is entitled to presume that the
employer's discriminatory animus made a difference to the outcome,
absent proof to the contrary from the employer. Where a disparate
treatment plaintiff has made such a showing, the burden then rests
with the employer to convince the trier of fact that it is more
likely than not that the decision would have been the same absent
consideration of the illegitimate factor. The employer need not
isolate the sole cause for the decision; rather it must demonstrate
that, with the illegitimate factor removed from the calculus,
sufficient business reasons would have induced it to take the same
employment Page 490 U. S. 277 action. This evidentiary scheme essentially requires the
employer to place the employee in the same position he or she would
have occupied absent discrimination. Cf. Mt. Healthy City Bd.
of Ed. v. Doyle, 429 U. S. 274 , 429 U. S. 286 (1977). If the employer fails to carry this burden, the factfinder
is justified in concluding that the decision was made "because of "
consideration of the illegitimate factor, and the substantive
standard for liability under the statute is satisfied.

															Thus, stray remarks in the workplace, while perhaps probative of
sexual harassment, see Meritor Savings Bank v. Vinson, 477 U. S. 57 , 477 U. S. 63 -69
(1986), cannot justify requiring the employer to prove that its
hiring or promotion decisions were based on legitimate criteria.
Nor can statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process itself, suffice
to satisfy the plaintiff's burden in this regard. In addition, in
my view testimony such as Dr. Fiske's in this case, standing alone,
would not justify shifting the burden of persuasion to the
employer. Race and gender always "play a role" in an employment
decision in the benign sense that these are human characteristics
of which decisionmakers are aware and about which they may comment
in a perfectly neutral and nondiscriminatory fashion. For example,
in the context of this case, a mere reference to "a lady candidate"
might show that gender "played a role" in the decision, but by no
means could support a rational factfinder's inference that the
decision was made "because of" sex. What is required is what Ann
Hopkins showed here: direct evidence that decisionmakers placed
substantial negative reliance on an illegitimate criterion in
reaching their decision.

															It should be obvious that the threshold standard I would adopt
for shifting the burden of persuasion to the defendant differs
substantially from that proposed by the plurality, the plurality's
suggestion to the contrary notwithstanding. See ante at 490 U. S. 250 ,
n. 13. The plurality proceeds from the premise that the words
"because of" in the statute do not embody any Page 490 U. S. 278 causal requirement at all. Under my approach, the plaintiff must
produce evidence sufficient to show that an illegitimate criterion
was a substantial factor in the particular employment decision such
that a reasonable factfinder could draw an inference that the
decision was made "because of" the plaintiff's protected status.
Only then would the burden of proof shift to the defendant to prove
that the decision would have been justified by other, wholly
legitimate considerations. See also ante at 490 U. S.
259 -260 (WHITE, J., concurring in judgment).

															In sum, because of the concerns outlined above, and because I
believe that the deterrent purpose of Title VII is disserved by a
rule which places the burden of proof on plaintiffs on the issue of
causation in all circumstances, I would retain, but supplement, the
framework we established in McDonnell Douglas and
subsequent cases. The structure of the presentation of evidence in
an individual disparate treatment case should conform to the
general outlines we established in McDonnell Douglas and Burdine. First, the plaintiff must establish the McDonell Douglas prima facie case by showing membership in
a protected group, qualification for the job, rejection for the
position, and that, after rejection, the employer continued to seek
applicants of complainant's general qualifications. McDonnell
Douglas, 411 U.S. at 411 U. S. 802 .
The plaintiff should also present any direct evidence of
discriminatory animus in the decisional process. The defendant
should then present its case, including its evidence as to
legitimate, nondiscriminatory reasons for the employment decision.
As the dissent notes, under this framework, the employer "has every
incentive to convince the trier of fact that the decision was
lawful." Post at 490 U. S. 292 ,
citing Burdine, 450 U.S. at 450 U. S. 258 .
Once all the evidence has been received, the court should determine
whether the McDonnell Douglas or Price Waterhouse framework properly applies to the evidence before it. If the
plaintiff has failed to satisfy the Price Waterhouse threshold, the case should be decided under the principles
enunciated in McDonnell Douglas and Burdine, Page 490 U. S. 279 with the plaintiff bearing the burden of persuasion on the
ultimate issue whether the employment action was taken because of
discrimination. In my view, such a system is both fair and
workable, and it calibrates the evidentiary requirements demanded
of the parties to the goals behind the statute itself.

															I agree with the dissent, see post at 490 U. S. 293 ,
n. 4, that the evidentiary framework I propose should be available
to all disparate treatment plaintiffs where an illegitimate
consideration played a substantial role in an adverse employment
decision. The Court's allocation of the burden of proof in Johnson v. Transportation Agency, Santa Clara County, 480 U. S. 616 , 480 U. S.
626 -627 (1987), rested squarely on "the analytical
framework set forth in McDonnell Douglas, " id. at 480 U. S. 626 ,
which we alter today. It would be odd, to say the least, if the
evidentiary rules applicable to Title VII actions were themselves
dependent on the gender or the skin color of the litigants. But
see ante at 490 U. S. 239 ,
n. 3.

															In this case, I agree with the plurality that petitioner should
be called upon to show that the outcome would have been the same if
respondent's professional merit had been its only concern. On
remand, the District Court should determine whether Price
Waterhouse has shown by a preponderance of the evidence that, if
gender had not been part of the process, its employment decision
concerning Ann Hopkins would nonetheless have been the same.

															JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.

															Today the Court manipulates existing and complex rules for
employment discrimination cases in a way certain to result in
confusion. Continued adherence to the evidentiary scheme
established in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), is a wiser course than creation of more disarray in an area
of the law already difficult for the bench and bar, and so I must
dissent. Page 490 U. S. 280 Before turning to my reasons for disagreement with the Court's
disposition of the case, it is important to review the actual
holding of today's decision. I read the opinions as establishing
that, in a limited number of cases Title VII plaintiffs, by
presenting direct and substantial evidence of discriminatory
animus, may shift the burden of persuasion to the defendant to show
that an adverse employment decision would have been supported by
legitimate reasons. The shift in the burden of persuasion occurs
only where a plaintiff proves by direct evidence that an unlawful
motive was a substantial factor actually relied upon in making the
decision. Ante at 490 U. S. 276 -277 (opinion of O'CONNOR, J.); ante at 490 U. S.
259 -260 (opinion of WHITE, J.). As the opinions make
plain, the evidentiary scheme created today is not for every case
in which a plaintiff produces evidence of stray remarks in the
workplace. Ante at 490 U. S. 251 (opinion of BRENNAN, J.); ante at 490 U. S. 277 (opinion of O'CONNOR, J.).

															Where the plaintiff makes the requisite showing, the burden that
shifts to the employer is to show that legitimate employment
considerations would have justified the decision without reference
to any impermissible motive. Ante at 490 U. S.
260 -261 (opinion of WHITE, J.); ante at 490 U. S. 278 (opinion of O'CONNOR, J.). The employer's proof on the point is to
be presented and reviewed just as with any other evidentiary
question: the Court does not accept the plurality's suggestion that
an employer's evidence need be "objective" or otherwise out of the
ordinary. Ante at 490 U. S. 261 (opinion of WHITE, J.).

															In sum, the Court alters the evidentiary framework of McDonnell Douglas and Burdine for a closely
defined set of cases. Although JUSTICE O'CONNOR advances some
thoughtful arguments for this change, I remain convinced that it is
unnecessary and unwise. More troubling is the plurality's rationale
for today's decision, which includes a number of unfortunate
pronouncements on both causation and methods of proof in employment
discrimination cases. To demonstrate the defects in the plurality's
reasoning, it is necessary Page 490 U. S. 281 to discuss, first, the standard of causation in Title VII cases,
and, second, the burden of proof. I The plurality describes this as a case about the standard of
causation under Title VII, ante at 490 U. S. 237 ,
but I respectfully suggest that the description is misleading. Much
of the plurality's rhetoric is spent denouncing a "but-for"
standard of causation. The theory of Title VII liability the
plurality adopts, however, essentially incorporates the but-for
standard. The importance of today's decision is not the standard of
causation it employs, but its shift to the defendant of the burden
of proof. The plurality's causation analysis is misdirected, for it
is clear that, whoever bears the burden of proof on the issue,
Title VII liability requires a finding of but-for causation. See also ante at 490 U. S. 261 ,
and n. (opinion of WHITE, J.); ante at 490 U. S.
262 -263 (opinion of O'CONNOR, J.).

															The words of Title VII are not obscure. The part of the statute
relevant to this case provides:

															"It shall be an unlawful employment practice for an employer --
"

															"(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex,
or national origin."

															42 U.S.C. § 2000e-2(a)(1) (emphasis added).

															By any normal understanding, the phrase "because of " conveys
the idea that the motive in question made a difference to the
outcome. We use the words this way in everyday speech. And
assuming, as the plurality does, that we ought to consider the
interpretive memorandum prepared by the statute's drafters, we find
that this is what the words meant to them as well. "To discriminate
is to make a distinction, to make a difference in treatment or
favor." 110 Cong.Rec. 7213 (1964). Congress could not have chosen a
clearer way Page 490 U. S. 282 to indicate that proof of liability under Title VII requires a
showing that race, color, religion, sex, or national origin caused
the decision at issue.

															Our decisions confirm that Title VII is not concerned with the
mere presence of impermissible motives; it is directed to
employment decisions that result from those motives. The verbal
formulae we have used in our precedents are synonymous with but-for
causation. Thus, we have said that providing different insurance
coverage to male and female employees violates the statute by
treating the employee " in a manner which, but for that person's
sex, would be different.'" Newport News Shipbuilding & Dry
Dock Co. v. EEOC, 462 U. S. 669 , 462 U. S. 683 (1983), quoting Los Angeles Dept. of Water & Power v.
Manhart, 435 U. S. 702 , 435 U. S. 711 (1978). We have described the relevant question as whether the
employment decision was "based on" a discriminatory criterion, Teamsters v. United States, 431 U.
S. 324 , 431 U. S. 358 (1977), or whether the particular employment decision at issue was
"made on the basis of " an impermissible factor, Cooper v.
Federal Reserve Bank of Richmond, 467 U.
S. 867 , 467 U. S. 875 (1984). What we term "but-for" cause is the least rigorous standard that
is consistent with the approach to causation our precedents
describe. If a motive is not a but-for cause of an event, then by
definition it did not make a difference to the outcome. The event
would have occurred just the same without it. Common law approaches
to causation often require proof of but-for cause as a starting
point toward proof of legal cause. The law may require more than
but-for cause, for instance proximate cause, before imposing
liability. Any standard less than but-for, however, simply
represents a decision to impose liability without causation. As
Dean Prosser puts it, "[a]n act or omission is not regarded as a
cause of an event if the particular event would have occurred
without it." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
and Keeton on Law of Torts 265 (5th ed.1984). Page 490 U. S. 283 One of the principal reasons the plurality decision may sow
confusion is that it claims Title VII liability is unrelated to
but-for causation, yet it adopts a but-for standard once it has
placed the burden of proof as to causation upon the employer. This
approach conflates the question whether causation must be shown
with the question of how it is to be shown. Because the plurality's
theory of Title VII causation is ultimately consistent with a
but-for standard, it might be said that my disagreement with the
plurality's comments on but-for cause is simply academic. See
ante at 490 U. S. 259 (opinion of WHITE, J.). But since those comments seem to influence
the decision, I turn now to that part of the plurality's
analysis.

															The plurality begins by noting the quite unremarkable fact that
Title VII is written in the present tense. Ante at 490 U. S.
240 -241. It is unlawful "to fail" or "to refuse" to
provide employment benefits on the basis of sex, not "to have
failed" or "to have refused" to have done so. The plurality claims
that the present tense excludes a but-for inquiry as the relevant
standard because but-for causation is necessarily concerned with a
hypothetical inquiry into how a past event would have occurred
absent the contested motivation. This observation, however, tells
us nothing of particular relevance to Title VII or the cause of
action it creates. I am unaware of any federal prohibitory statute
that is written in the past tense. Every liability determination,
including the novel one constructed by the plurality, necessarily
is concerned with the examination of a past event. [ Footnote 2/1 ] The plurality's analysis of verb
tense serves only to divert attention from the causation
requirement that is made part of the statute by the "because Page 490 U. S. 284 of" phrase. That phrase, I respectfully submit, embodies a
rather simple concept that the plurality labors to ignore.
[ Footnote 2/2 ]

															We are told next that but-for cause is not required, since the
words "because of" do not mean " solely because of." Ante at 490 U. S. 241 .
No one contends, however, that sex must be the sole cause of a
decision before there is a Title VII violation. This is a separate
question from whether consideration of sex must be a cause
of the decision. Under the accepted approach to causation that I
have discussed, sex is a cause for the employment decision
whenever, either by itself or in combination with other factors, it
made a difference to the decision. Discrimination need not be the
sole cause in order for liability to arise, but merely a necessary
element of the set of factors that caused the decision, i.e., a but-for cause. See McDonald v. Santa Fe Trail
Tranportation Co., 427 U. S. 273 , 427 U. S. 282 ,
n. 10 (1976). The plurality seems to say that, since we know the
words "because of " do not mean "solely because of," they must not
mean "because of " at all. This does not follow, as a matter of
either semantics or logic.

															The plurality's reliance on the "bona fide occupational
qualification" (BFOQ) provisions of Title VII, 42 U.S.C. §
2000e-2(e), is particularly inapt. The BFOQ provisions allow an
employer, in certain cases, to make an employment decision of which
it is conceded that sex is the cause. That sex may be the
legitimate cause of an employment decision where gender is a BFOQ
is consistent with the opposite command Page 490 U. S. 285 that a decision caused by sex in any other case justifies the
imposition of Title VII liability. This principle does not support,
however, the novel assertion that a violation has occurred where
sex made no difference to the outcome.

															The most confusing aspect of the plurality's analysis of
causation and liability is its internal inconsistency. The
plurality begins by saying:

															"When . . . an employer considers both gender and legitimate
factors at the time of making a decision, that decision was
'because of' sex and the other, legitimate considerations -- even
if we may say later, in the context of litigation, that the
decision would have been the same if gender had not been taken into
account." Ante at 490 U. S. 241 .
Yet it goes on to state that

															"an employer shall not be liable if it can prove that, even if
it had not taken gender into account, it would have come to the
same decision." Ante at 490 U. S.
242 .

															Given the language of the statute, these statements cannot both
be true. Title VII unambiguously states that an employer who makes
decisions "because of" sex has violated the statute. The
plurality's first statement therefore appears to indicate that an
employer who considers illegitimate reasons when making a decision
is a violator. But the opinion then tells us that the employer who
shows that the same decision would have been made absent
consideration of sex is not a violator. If the second statement is
to be reconciled with the language of Title VII, it must be that a
decision that would have been the same absent consideration of sex
was not made "because of " sex. In other words, there is no
violation of the statute absent but-for causation. The plurality's
description of the "same decision" test it adopts supports this
view. The opinion states that

															"[a] court that finds for a plaintiff under this standard has
effectively concluded that an illegitimate motive was a 'but-for'
cause of the employment decision," ante at 19, and that this "is not an imposition of
liability where sex made no difference to the outcome,'" ante at 490 U. S. 246 ,
n. 11. Page 490 U. S. 286 The plurality attempts to reconcile its internal inconsistency
on the causation issue by describing the employer's showing as an
"affirmative defense." This is nothing more than a label, and one
not found in the language or legislative history of Title VII.
Section 703(a)(1) is the statutory basis of the cause of action,
and the Court is obligated to explain how its disparate treatment
decisions are consistent with the terms of § 703(a)(1), not with
general themes of legislative history or with other parts of the
statute that are plainly inapposite. While the test ultimately
adopted by the plurality may not be inconsistent with the terms of
§ 703(a)(1), see infra, at 490 U. S. 292 ,
the same cannot be said of the plurality's reasoning with respect
to causation. As JUSTICE O'CONNOR describes it, the plurality
"reads the causation requirement out of the statute, and then
replaces it with an affirmative defense.'" Ante at 490 U. S. 276 .
Labels aside, the import of today's decision is not that Title VII
liability can arise without but-for causation, but that, in certain
cases, it is not the plaintiff who must prove the presence of
causation, but the defendant who must prove its absence. II We established the order of proof for individual Title VII
disparate treatment cases in McDonnell Douglas Corp. v.
Green, 411 U. S. 792 (1973), and reaffirmed this allocation in Texas Dept. of
Community Affairs v. Burdine, 450 U.
S. 248 (1981). Under Burdine, once the
plaintiff presents a prima facie case, an inference of
discrimination arises. The employer must rebut the inference by
articulating a legitimate nondiscriminatory reason for its action.
The final burden of persuasion, however, belongs to the plaintiff. Burdine makes clear that the

															"ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff." Id. at 450 U. S. 253 . See also Board of Trustees of Keene
State College v. Page 490 U. S. 287 Sweeney, 439 U. S. 24 , 439 U. S. 29 (1978) (STEVENS, J., dissenting). [ Footnote 2/3 ] I would adhere to this established
evidentiary framework, which provides the appropriate standard for
this and other individual disparate treatment cases. Today's
creation of a new set of rules for "mixed-motives" cases is not
mandated by the statute itself. The Court's attempt at refinement
provides limited practical benefits at the cost of confusion and
complexity, with the attendant risk that the trier of fact will
misapprehend the controlling legal principles and reach an
incorrect decision.

															In view of the plurality's treatment of Burdine and our
other disparate treatment cases, it is important first to state why
those cases are dispositive here. The plurality tries to reconcile
its approach with Burdine by announcing that it applies
only to a "pretext" case, which it defines as a case in which the
plaintiff attempts to prove that the employer's proffered
explanation is itself false. Ante at 490 U. S.
245 -247, and n. 11. This ignores the language of Burdine, which states that a plaintiff may succeed in
meeting her ultimate burden of persuasion

															" either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation is
unworthy of credence."

															450 U.S. at 450 U. S. 256 (emphasis added). Under the first of these two alternative methods,
a plaintiff meets her burden if she can "persuade the court that
the employment decision more likely than not was motivated by a
discriminatory reason." United States Postal Service Bd. of
Governors v. Aikens, 460 U. S. 711 , 460 U. S.
717 -718 (1983) Page 490 U. S. 288 (BLACKMUN, J., concurring). The plurality makes no attempt to
address this aspect of our cases.

															Our opinions make plain that Burdine applies to all
individual disparate treatment cases, whether the plaintiff offers
direct proof that discrimination motivated the employer's actions
or chooses the indirect method of showing that the employer's
proffered justification is false, that is to say, a pretext. See Aikens, 460 U.S. at 460 U. S. 714 ,
n. 3 ("As in any lawsuit, the plaintiff may prove his case by
direct or circumstantial evidence"). The plurality is mistaken in
suggesting that the plaintiff in a so-called "mixed-motives" case
will be disadvantaged by having to "squeeze her proof into Burdine's framework." Ante at 490 U. S. 247 .
As we acknowledged in McDonnell Douglas, "[t]he facts
necessarily will vary in Title VII cases," and the specification of
the prima facie case set forth there "is not necessarily
applicable in every respect to differing factual situations." 411
U.S. at 411 U. S. 802 ,
n. 13. The framework was "never intended to be rigid, mechanized,
or ritualistic." Aikens, 460 U.S. at 460 U. S. 715 . Burdine compels the employer to come forward with its
explanation of the decision and permits the plaintiff to offer
evidence under either of the logical methods for proof of
discrimination. This is hardly a framework that confines the
plaintiff; still less is it a justification for saying that the
ultimate burden of proof must be on the employer in a mixed-motives
case. Burdine provides an orderly and adequate way to
place both inferential and direct proof before the factfinder for a
determination whether intentional discrimination has caused the
employment decision. Regardless of the character of the evidence
presented, we have consistently held that the ultimate burden
"remains at all times with the plaintiff." Burdine, 450
U.S. at 450 U. S.
253 . Aikens illustrates the point. There, the evidence
showed that the plaintiff, a black man, was far more qualified than
any of the white applicants promoted ahead of him. More important,
the testimony showed that

															"the person responsible for the promotion decisions at issue had
made numerous Page 490 U. S. 289 derogatory comments about blacks in general and Aikens in
particular."

															460 U.S. at 460 U. S.
713 -714, n. 2. Yet the Court in Aikens reiterated that the case was to be tried under the proof scheme of Burdine. JUSTICE BRENNAN and JUSTICE BLACKMUN concurred to
stress that the plaintiff could prevail under the Burdine scheme in either of two ways, one of which was directly to persuade
the court that the employment decision was motivated by
discrimination. 460 U.S. at 460 U. S. 718 . Aikens leaves no doubt that the so-called "pretext"
framework of Burdine has been considered to provide a
flexible means of addressing all individual disparate treatment
claims.

															Downplaying the novelty of its opinion, the plurality claims to
have followed a "well worn path" from our prior cases. The path may
be well worn, but it is in the wrong forest. The plurality again
relies on Title VII's BFOQ provisions, under which an employer
bears the burden of justifying the use of a sex-based employment
qualification. See Dothard v. Rawlinson, 433 U.
S. 321 , 433 U. S.
332 -337 (1977). In the BFOQ context, this is a sensible,
indeed necessary, allocation of the burden, for there, by
definition, sex is the but-for cause of the employment decision,
and the only question remaining is how the employer can justify it.
The same is true of the plurality's citations to Pregnancy
Discrimination Act cases, ante at 490 U. S. 248 .
In such cases, there is no question that pregnancy was the cause of
the disputed action. The Pregnancy Discrimination Act and BFOQ
cases tell us nothing about the case where the employer claims not
that a sex-based decision was justified, but that the decision was
not sex-based at all.

															Closer analogies to the plurality's new approach are found in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.
S. 274 (1977), and NRLB v. Transportation
Management Corp., 462 U. S. 393 (1983), but these cases were decided in different contexts. Mt.
Healthy was a First Amendment case involving the firing of a
teacher, and Transportation Management involved review of
the NLRB's interpretation of the National Labor Relations Act. Page 490 U. S. 290 The Transportation Management decision was based on the
deference that the Court traditionally accords NLRB interpretations
of the statutes it administers. See 462 U.S. at 462 U. S.
402 -403. Neither case therefore tells us why the
established Burdine framework should not continue to
govern the order of proof under Title VII.

															In contrast to the plurality, JUSTICE O'CONNOR acknowledges that
the approach adopted today is a "departure from the McDonnell
Douglas standard." Ante at 490 U. S. 262 .
Although her reasons for supporting this departure are not without
force, they are not dispositive. As JUSTICE O'CONNOR states, the
most that can be said with respect to the Title VII itself is that
"nothing in the language, history, or purpose of Title VII prohibits adoption" of the new approach. Ante at 490 U. S. 269 (emphasis added). JUSTICE O'CONNOR also relies on analogies from
the common law of torts, other types of Title VII litigation, and
our equal protection cases. These analogies demonstrate that shifts
in the burden of proof are not unprecedented in the law of torts or
employment discrimination. Nonetheless, I believe continued
adherence to the Burdine framework is more consistent with
the statutory mandate. Congress' manifest concern with preventing
imposition of liability in cases where discriminatory animus did
not actually cause an adverse action, see ante at 490 U. S. 262 (opinion of O'CONNOR, J.), suggests to me that an affirmative
showing of causation should be required. And the most relevant
portion of the legislative history supports just this view. See n 3, supra. The limited benefits that are likely to be produced
by today's innovation come at the sacrifice of clarity and
practical application.

															The potential benefits of the new approach, in my view, are
overstated. First, the Court makes clear that the Price
Waterhouse scheme is applicable only in those cases where the
plaintiff has produced direct and substantial proof that an
impermissible motive was relied upon in making the decision at
issue. The burden shift properly will be found to apply in Page 490 U. S. 291 only a limited number of employment discrimination cases. The
application of the new scheme, furthermore, will make a difference
only in a smaller subset of cases. The practical importance of the
burden of proof is the "risk of nonpersuasion," and the new system
will make a difference only where the evidence is so evenly
balanced that the factfinder cannot say that either side's
explanation of the case is "more likely" true. This category will
not include cases in which the allocation of the burden of proof
will be dispositive because of a complete lack of evidence on the
causation issue. Cf. Summers v. Tice, 33 Cal. 2d 80 ,
199 P.2d 1 (1948) (allocation of burden dispositive because no
evidence of which of two negligently fired shots hit plaintiff).
Rather, Price Waterhouse will apply only to cases in which there is
substantial evidence of reliance on an impermissible motive, as
well as evidence from the employer that legitimate reasons
supported its action.

															Although the Price Waterhouse system is not for every
case, almost every plaintiff is certain to ask for a Price
Waterhouse instruction, perhaps on the basis of "stray
remarks" or other evidence of discriminatory animus. Trial and
appellate courts will therefore be saddled with the task of
developing standards for determining when to apply the burden
shift. One of their new tasks will be the generation of a
jurisprudence of the meaning of "substantial factor." Courts will
also be required to make the often subtle and difficult distinction
between "direct" and "indirect" or "circumstantial" evidence. Lower
courts long have had difficulty applying McDonnell Douglas and Burdine. Addition of a second burden-shifting
mechanism, the application of which itself depends on assessment of
credibility and a determination whether evidence is sufficiently
direct and substantial, is not likely to lend clarity to the
process. The presence of an existing burden-shifting mechanism
distinguishes the individual disparate treatment case from the
tort, classaction discrimination, and equal protection cases on
which Page 490 U. S. 292 JUSTICE O'CONNOR relies. The distinction makes JUSTICE WHITE'S
assertions that one "need look only to" Mt. Healthy and Transportation Management to resolve this case, and that
our Title VII cases in this area are "inapposite," ante at 490 U. S.
258 -260, at best hard to understand.

															Confusion in the application of dual burden-shifting mechanisms
will be most acute in cases brought under § 1981 or the Age
Discrimination in Employment Act (ADEA), where courts borrow the
Title VII order of proof for the conduct of jury trials. See,
e.g., Note, The Age Discrimination in Employment Act of 1967
and Trial by Jury: Proposals for Change, 73 Va.L.Rev. 601 (1987)
(noting high reversal rate caused by use of Title VII
burden-shifting in a jury setting). Perhaps such cases in the
future will require a bifurcated trial, with the jury retiring
first to make the credibility findings necessary to determine
whether the plaintiff has proved that an impermissible factor
played a substantial part in the decision, and later hearing
evidence on the "same decision" or "pretext" issues. Alternatively,
perhaps the trial judge will have the unenviable task of
formulating a single instruction for the jury on all of the various
burdens potentially involved in the case.

															I do not believe the minor refinement in Title VII procedures
accomplished by today's holding can justify the difficulties that
will accompany it. Rather, I

															"remain confident that the McDonnell Douglas framework
permits the plaintiff meriting relief to demonstrate intentional
discrimination." Burdine, 450 U.S. at 450 U. S. 258 .
Although the employer does not bear the burden of persuasion under Burdine, it must offer clear and reasonably specific
reasons for the contested decision, and has every incentive to
persuade the trier of fact that the decision was lawful. Ibid. Further, the suggestion that the employer should
bear the burden of persuasion due to superior access to evidence
has little force in the Title VII context, where the liberal
discovery rules available to all litigants are supplemented by EEOC
investigatory files. Ibid. Page 490 U. S. 293 In sum, the Burdine framework provides a "sensible,
orderly way to evaluate the evidence in light of common experience
as it bears on the critical question of discrimination," Aikens, 460 U.S. at 460 U. S. 715 ,
and it should continue to govern the order of proof in Title VII
disparate treatment cases. [ Footnote
2/4 ] III The ultimate question in every individual disparate treatment
case is whether discrimination caused the particular decision at
issue. Some of the plurality's comments with respect to the
District Court's findings in this case, however, are potentially
misleading. As the plurality notes, the District Court based its
liability determination on expert evidence that some evaluations of
respondent Hopkins were based on unconscious sex stereotypes,
[ Footnote 2/5 ] and on the fact
that Page 490 U. S. 294 Price Waterhouse failed to disclaim reliance on these comments
when it conducted the partnership review. The District Court also
based liability on Price Waterhouse's failure to

															"make partners sensitive to the dangers [of stereotyping], to
discourage comments tainted by sexism, or to investigate comments
to determine whether they were influenced by stereotypes." 618 F.
Supp. 1109 , 1119 (DC 1985).

															Although the District Court's version of Title VII liability is
improper under any of today's opinions, I think it important to
stress that Title VII creates no independent cause of action for
sex stereotyping. Evidence of use by decisionmakers of sex
stereotypes is, of course, quite relevant to the question of
discriminatory intent. The ultimate question, however, is whether
discrimination caused the plaintiff's harm. Our cases do not
support the suggestion that failure to "disclaim reliance" on
stereotypical comments itself violates Title VII. Neither do they
support creation of a "duty to sensitize." As the dissenting judge
in the Court of Appeals observed, acceptance of such theories would
turn Title VII "from a prohibition of discriminatory conduct into
an engine for rooting out sexist thoughts." 263 U.S.App.D.C. 321,
340, 825 F.2d 458, 477 (1987) (Williams, J., dissenting).

															Employment discrimination claims require factfinders to make
difficult and sensitive decisions. Sometimes this may mean that no
finding of discrimination is justified even though a qualified
employee is passed over by a less than admirable employer. In other
cases, Title VII's protections properly extend to plaintiffs who
are by no means model employees. As JUSTICE BRENNAN notes, ante at 490 U. S. 258 ,
courts do not sit to determine whether litigants are nice. In
this Page 490 U. S. 295 case, Hopkins plainly presented a strong case both of her own
professional qualifications and of the presence of discrimination
in Price Waterhouse's partnership process. Had the District Court
found on this record that sex discrimination caused the adverse
decision, I doubt it would have been reversible error. Cf.
Aikens, 460 U.S. at 460 U. S. 714 ,
n. 2. That decision was for the finder of fact, however, and the
District Court made plain that sex discrimination was not a but-for
cause of the decision to place Hopkins' partnership candidacy on
hold. Attempts to evade tough decisions by erecting novel theories
of liability or multitiered systems of shifting burdens are
misguided. IV The language of Title VII and our well considered precedents
require this plaintiff to establish that the decision to place her
candidacy on hold was made "because of" sex. Here the District
Court found that the "comments of the individual partners and the
expert evidence of Dr. Fiske do not prove an intentional
discriminatory motive or purpose," 618 F. Supp. at 1118, and
that,

															"[b]ecause plaintiff has considerable problems dealing with
staff and peers, the Court cannot say that she would have been
elected to partnership if the Policy Board's decision had not been
tainted by sexually based evaluations," id. at 1120. Hopkins thus failed to meet the requisite
standard of proof after a full trial. I would remand the case for
entry of judgment in favor of Price Waterhouse.

															[ Footnote 2/1 ]

															The plurality's description of its own standard is both
hypothetical and retrospective. The inquiry seeks to determine
whether,

															"if we asked the employer at the moment of decision what its
reasons were, and if we received a truthful response, one of those
reasons would be that the applicant or employee was a woman." Ante at 490 U. S.
250 .

															[ Footnote 2/2 ]

															The plurality's discussion of overdetermined causes only
highlights the error of its insistence that but-for is not the
substantive standard of causation under Title VII. The opinion
discusses the situation where two physical forces move an object,
and either force acting alone would have moved the object. Ante at 490 U. S. 241 .
Translated to the context of Title VII, this situation would arise
where an employer took an adverse action in reliance both on sex
and on legitimate reasons, and either the illegitimate or
the legitimate reason, standing alone, would have produced the
action. If this state of affairs is proved to the factfinder, there
will be no liability under the plurality's own test, for the same
decision would have been made had the illegitimate reason never
been considered.

															[ Footnote 2/3 ]

															The interpretive memorandum on which the plurality relies makes
plain that "the plaintiff, as in any civil case, would have the
burden of proving that discrimination had occurred." 110 Cong.Rec.
7214 (1964). Coupled with its earlier definition of discrimination,
the memorandum tells us that the plaintiff bears the burden of
showing that an impermissible motive "made a difference" in the
treatment of the plaintiff. This is none other than the traditional
requirement that the plaintiff show but-for cause.

															[ Footnote 2/4 ]

															The plurality states that it disregards the special context of
affirmative action. Ante at 490 U. S. 239 ,
n. 3. It is not clear that this is possible. Some courts have held
that, in a suit challenging an affirmative action plan, the
question of the plan's validity need not be reached unless the
plaintiff shows that the plan was a but-for cause of the adverse
decision. See McQuillen v. Wisconsin Education Association
Council, 830 F.2d 659, 665 (CA7 1987), cert. denied, 485 U. S. 914 (1988). Presumably it will be easier for a plaintiff to show that
consideration of race or sex pursuant to an affirmative action plan
was a substantial factor in a decision, and the court will need to
move on to the question of a plan's validity. Moreover, if the
structure of the burdens of proof in Title VII suits is to be
consistent, as might be expected given the identical statutory
language involved, today's decision suggests that plaintiffs should
no longer bear the burden of showing that affirmative action plans
are illegal. See Johnson v. Transportation Agency, Santa Clara
County, 480 U. S. 616 , 480 U. S.
626 -627 (1987).

															[ Footnote 2/5 ]

															The plaintiff who engages the services of Dr. Susan Fiske should
have no trouble showing that sex discrimination played a part in
any decision. Price Waterhouse chose not to object to Fiske's
testimony, and at this late stage we are constrained to accept it,
but I think the plurality's enthusiasm for Fiske's conclusions
unwarranted. Fiske purported to discern stereotyping in comments
that were gender neutral -- e.g., "overbearing and
abrasive" -- without any knowledge of the comments' basis in
reality and without having met the speaker or subject.

															"To an expert of Dr. Fiske's qualifications, it seems plain that
no woman could be overbearing, arrogant, or abrasive: any
observations to that effect would necessarily be discounted as the
product of stereotyping. If analysis like this is to prevail in
federal courts, no employer can base any adverse action as to a
woman on such attributes."

															263 U.S.App.D.C. 321, 340, 825 F.2d 458, 477 (1987) (Williams,
J., dissenting). Today's opinions cannot be read as requiring
factfinders to credit testimony based on this type of analysis. See also ante at 490 U. S. 277 (opinion of O'CONNOR, J.).

Summary: In the case of Price Waterhouse v. Hopkins (1989), the U.S. Supreme Court ruled that when a plaintiff in a Title VII case proves that their gender played a role in an employment decision, the defendant can avoid liability by proving that they would have made the same decision regardless of the plaintiff's gender. The Court held that the employer must prove this by a preponderance of the evidence, rather than by clear and convincing evidence as the lower courts had ruled. This case established the burden of proof for employers accused of discrimination to show that their decision would have been the same regardless of the protected characteristic in question.