The plurality begins by noting the quite unremarkable fact that Title VII is written in the present tense. 2576, 2589, n. 14, 81 L.Ed.2d 483 (1984). 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 249, and that this "is not an imposition of liability 'where sex made no difference to the outcome,' " ante, at 246, n. 11. Motive, Means, and Opportunity. Id., at 1118. Today's opinions cannot be read as requiring factfinders to credit testimony based on this type of analysis. 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. 555, 50 L.Ed.2d 450 (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 my view, to determine the proper approach to causation in this case, we need look only to the Court's opinion in Mt. 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. 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. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). In criminal law, motive in itself is not an element of any given crime; however, the legal system typically allows motive to be proven to make plausible the accused's reasons for committing a crime, at least when those motives may be obscure or hard to identify with. See, e.g., post, at 292. 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. 618 F.Supp., at 1112. v. Doyle, 429 U.S. 274, 97 S.Ct. As we indicated in Transportation Management Corp., the showing required by Mt. When a motive supplies inadequate defense to a crime, the motive is partially exculpatory. 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." of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13, 98 S.Ct. 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. 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. In such cases there is no question that pregnancy was the cause of the disputed action. law and strong business con˜dence may help encourage businesses to focus on capex to increase ef˜ciency and improve competitiveness. 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. We are persuaded that the better rule is that the employer must make this showing by a preponderance of the evidence. 1106, 99 L.Ed.2d 268 (1988). 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. 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. law and strong business condence may help encourage businesses to focus on capex to increase efciency and improve competitiveness. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 2622, 2631, 77 L.Ed.2d 89 (1983), quoting Los Angeles Dept. Healthy and Transportation Management, did not require clear and convincing proof. 1984). 42 U.S.C. 568, 50 L.Ed.2d 471 (1977), the plaintiff claimed that he had been discharged as a public school teacher for exercising his free-speech rights under the First Amendment. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 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. 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." 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. 110 Cong.Rec. Nor do we see how the inquiry that we have described is "hypothetical," see post, at 283, n. 1. The first is volitional objection, which is the argument that the person cannot manage his or her own motives and therefore cannot be punished for them. . Motives are often broken down into three categories; biological, social and personal. Congress could not have chosen a clearer way 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. As the dissent notes, under this framework, the employer "has every incentive to convince the trier of fact that the decision was lawful." . 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. The second goal of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." The common law control test is the basic test, using the common law rules, for determining whether a relationship exists between the worker and the person or firm that they work for. Ibid. The other important aspect of the statute is its preservation of an employer's remaining freedom of choice. ); ante, at 259-260 (opinion of WHITE, J.). 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. 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. 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 tha factor had been absent, the event nevertheless would have transpired in the same way. 1442, 1449, 94 L.Ed.2d 615 (1987). Cf. Id., at 286, 97 S.Ct. See, e.g., Fields v. Clark University, 817 F.2d 931, 935-937 (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). 2223, 2229, 41 L.Ed.2d 1 (1974). Congress' manifest concern with preventing imposition of liability in cases where discriminatory animus did not actually cause an adverse action, see ante, at 262 (opinion of O'CONNOR, J. The plurality's description of the "same decision" test it adopts supports this view. Rather, as Justice O'CONNOR states, her burden was to show that the unlawful motive was a substantial factor in the adverse employment action. 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. 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. In other cases, Title VII's protections properly extend to plaintiffs who are by no means model employees. . Id., at 418, 95 S.Ct., at 2372. 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. 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. 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.' 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. The legislative history makes it clear that Congress was attempting to eradicate discriminatory actions in the employment setting, not mere discriminatory thoughts. This recommendation will be either that the firm accept the candidate for partnership, put her application on "hold," or deny her the promotion outright. Barry Gilbert, PhD, CFA . From criminology, let’s apply motive, means, and opportunity from a top down perspective to arrive at something fundamental to police. Id., at 265-266, 97 S.Ct., at 563 (citation omitted). Healthy, supra, 429 U.S., at 287, 97 S.Ct., at 576. denied, 475 U.S. 1035, 106 S.Ct. 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. Neither do they support creation of a "duty to sensitize." I agree with the dissent, see post, at 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. In now-familiar language, the statute forbids 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 . 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. Since Hopkins did not make this argument below, we do not address it. . Burdine, 450 U.S., at 256, 101 S.Ct., at 1095. . To avoid bearing the burden of justifying its decision, the employer need not seek racial or sexual balance in its work force; rather, all it need do is avoid substantial reliance on forbidden criteria in making its employment decisions. 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. 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. We have, in short, been here before. 683, 691, 74 L.Ed.2d 548 (1983). One of their new tasks will be the generation of a jurisprudence of the meaning of "substantial factor." The plurality went on to emphasize that in a disparate impact case, the plaintiff may not simply point to a statistical disparity in the employer's work force. 450 U.S., at 256-258, 101 S.Ct., at 1095-1096. 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. See Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. . 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." 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). 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. 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. First, the plaintiff must establish the McDonnell 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. The event would have occurred just the same without it. 263 U.S.App.D.C. 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. 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 997, 108 S.Ct., at 2790. 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. 25) and failed to challenge the legitimacy of her discipline. 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. 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. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. See, e.g., Bibbs v. Block, 778 F.2d 1318, 1320-1324 (1985) (en banc) ("discernible factor"). (a) The balance between employee ights 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. NLRB v. Transportation Management Corp., 462 U.S. 393, 400, n. 5, 103 S.Ct. The District Court, as its opinion was construed by the Court of Appeals, so found, 263 U.S.App.D.C. Reliance on such factors is exactly what the threat of Title VII liability was meant to deter. 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. This balance between employee rights and employer prerogatives turns out to be decisive in the case before us. 1388, 1396, 71 L.Ed.2d 599 (1982) (termination of parental rights); Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 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. The defendant's motive for revenge against a rival gang member arose from his criminal gang involvement. 248, 250, 75 L.Ed. On too many occasions, however, Hopkins' aggressiveness apparently spilled over into abrasiveness. 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. Tr. [1] In criminal law, motive in itself is not an element of any given crime; however, the legal system typically allows motive to be proven to make plausible the accused's reasons for committing a crime, at least when those motives may be obscure or hard to identify with. 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. If analysis like this is to prevail in federal courts, no employer can base any adverse action as to a woman on such attributes." Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418, 95 S.Ct. Ante, at 250. We si not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman. Of the 662 partners at the firm at that time, 7 were women. 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." Congress' intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute. Based on its misreading of the words "because of" in the statute, see ante, at 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. 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. 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. 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. 321, 825 F.2d 458 (1987), reversed and remanded. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. Ibid. 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. 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. 1089, 67 L.Ed.2d 207 (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. 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. 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. 27. But see post, at 277 (O'CONNOR, J., concurring in judgment). 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. As in Mt. Pp. 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." From Elvis’ hips to rap music, from Footloose to “twerking”, every older generation comes to the same conclusion: the world is going to pot faster than the state of Colorado. To construe the words "because of" as colloquial shorthand for "but-for causation," as does Price Waterhouse, is to misunderstand them.6.