Docket Number: 
United States Court of Appeals for the District of Columbia Circuit
MWELA Amicus by Jonathan C. Puth
Filing Date: 
July 17, 2008

In describing the parties’ burdens under Title VII proof paradigms, the Court’s opinion in
this case employed shorthand that is inaccurate and could prove mischievous. In particular, the
Court used the terms “single motive” and “sole motive” to distinguish cases that are not suited to
a partial affirmative defense to damages, from those cases in which the defense may be asserted.
In cases in which an affirmative defense is permitted, the employer has the burden of proving that
the “same decision” would have been made in the absence of bias. Regardless of the availability
of the defense, however, the plaintiff does not have – and never has had – the burden to prove that discrimination was the employer’s “single” or “sole” motive. The Court’s language choice could
inaccurately be read to have altered the plaintiff’s burden when attempting to prove an employer discriminated “because of” race or another protected characteristic. Amicus respectfully urges this Court to revise its opinion to avoid reliance on the terms “single motive” or “sole motive” to
describe cases where the “same decision” affirmative defense is unavailable.

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