DESERT PALACE, INC., dba CAESARS PALACE HOTEL & CASINO v. COSTA

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
90 OCTOBER TERM, 2002
Syllabus
DESERT PALACE, INC., dba CAESARS PALACE
HOTEL & CASINO v. COSTA
certiorari to the united states court of appeals for
the ninth circuit
No. 02–679. Argued April 21, 2003—Decided June 9, 2003
Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment
practice for an employer . . . to discriminate against any individual . . . ,
because of . . . sex.” 42 U. S. C. § 2000e–2(a)(1). In Price Waterhouse
v. Hopkins, 490 U. S. 228, this Court considered whether an employment
decision is made “because of ” sex in a “mixed-motive” case, i. e., where
both legitimate and illegitimate reasons motivated the decision. Al-
though the Court concluded that an employer had an affirmative defense
if it could prove that it would have made the same decision had gender
not played a role, it was divided on the question of when the burden of
proof shifts to an employer to prove the defense. Justice O’Connor,
concurring in the judgment, concluded that the burden would shift only
where a disparate treatment plaintiff could show by “direct evidence
that an illegitimate criterion was a substantial factor in the [employ-
ment] decision.” Id., at 276. Congress subsequently passed the Civil
Rights Act of 1991 (1991 Act), which provides, among other things, that
(1) an unlawful employment practice is established “when the complain-
ing party demonstrates that . . . sex . . . was a motivating factor for
any employment practice, even though other factors also motivated the
practice,” 42 U. S. C. § 2000e–2(m), and (2) if an individual proves a viola-
tion under § 2000e–2(m), the employer can avail itself of a limited af-
firmative defense that restricts the available remedies if it demonstrates
that it would have taken the same action absent the impermissible moti-
vating factor, § 2000e–5(g)(2)(B). Respondent, who was petitioner’s
only female warehouse worker and heavy equipment operator, had prob-
lems with management and her co-workers, which led to escalating dis-
ciplinary sanctions and her ultimate termination. She subsequently
filed this lawsuit, asserting, inter alia, a Title VII sex discrimination
claim. Based on the evidence she presented at trial, the District Court
denied petitioner’s motion for judgment as a matter of law and submit-
ted the case to the jury. The District Court instructed the jury, as
relevant here, that if respondent proved by a preponderance of the evi-
dence that sex was a motivating factor in the adverse work conditions
imposed on her, but petitioner’s conduct was also motivated by lawful

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
91 Cite as: 539 U. S. 90 (2003)
Syllabus
reasons, she was entitled to damages unless petitioner proved by a pre-
ponderance of the evidence that it would have treated her similarly had
gender played no role. Petitioner unsuccessfully objected to this in-
struction, claiming that respondent had not adduced “direct evidence”
that sex was a motivating factor in petitioner’s decision. The jury
awarded respondent backpay and compensatory and punitive damages,
and the District Court denied petitioner’s renewed motion for judgment
as a matter of law. A Ninth Circuit panel vacated and remanded,
agreeing with petitioner that the District Court had erred in giving the
mixed-motive instruction. The en banc court, however, reinstated the
judgment, finding that the 1991 Act does not impose any special eviden-
tiary requirement.
Held: Direct evidence of discrimination is not required for a plaintiff to
obtain a mixed-motive jury instruction under Title VII. The starting
point for this Court’s analysis is the statutory text. See Connecticut
Nat. Bank v. Germain, 503 U. S. 249, 253–254. Where, as here, the
statute’s words are unambiguous, the judicial inquiry is complete. Id.,
at 254. Section 2000e–2(m) unambiguously states that a plaintiff need
only demonstrate that an employer used a forbidden consideration with
respect to any employment practice. On its face, it does not mention
that a plaintiff must make a heightened showing through direct evi-
dence. Moreover, Congress explicitly defined “demonstrates” as to
“mee[t] the burdens of production and persuasion.” § 2000e–2(m). Had
Congress intended to require direct evidence, it could have included
language to that effect in § 2000e–2(m), as it has unequivocally done
when imposing heightened proof requirements in other circumstances.
See, e. g., 42 U. S. C. § 5851(b)(3)(D). Title VII’s silence also suggests
that this Court should not depart from the conventional rule of civil
litigation generally applied in Title VII cases, which requires a plaintiff
to prove his case by a preponderance of the evidence using direct or
circumstantial evidence. This Court has often acknowledged the utility
of circumstantial evidence in discrimination cases and has never ques-
tioned its adequacy in criminal cases, even though proof beyond a rea-
sonable doubt is required. Finally, the use of the term “demonstrates”
in other Title VII provisions tends to show that § 2000e–2(m) does
not incorporate a direct evidence requirement. See e. g., § 2000e–
2(k)(1)(A)(i). Pp. 98–102.
299 F. 3d 838, affirmed.
Thomas, J., delivered the opinion for a unanimous Court. O’Connor,
J., filed a concurring opinion, post, p. 102.

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
92 DESERT PALACE, INC. v. COSTA
Opinion of the Court
Mark J. Ricciardi argued the cause for petitioner. With
him on the briefs were Roger K. Quillen, Paul A. Ades, and
Corbett N. Gordon.
Irving L. Gornstein argued the cause for the United
States as amicus curiae. On the brief were Solicitor Gen-
eral Olson, Assistant Attorneys General McCallum and
Boyd, Deputy Solicitor General Clement, Dennis J. Dimsey,
and Teresa Kwong.
Robert N. Peccole argued the cause for respondent. With
him on the brief was Eric Schnapper.*
Justice Thomas delivered the opinion of the Court.
The question before us in this case is whether a plaintiff
must present direct evidence of discrimination in order to
obtain a mixed-motive instruction under Title VII of the
Civil Rights Act of 1964, as amended by the Civil Rights
Act of 1991 (1991 Act). We hold that direct evidence is not
required.
I
A
Since 1964, Title VII has made it an “unlawful employment
practice for an employer . . . to discriminate against any indi-
*Ann Elizabeth Reesman, Katherine Y. K. Cheung, Stephen A. Bokat,
and Ellen D. Bryant filed a brief for the Equal Employment Advisory
Council et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American
Federation of Labor and Congress of Industrial Organizations by Jona-
than P. Hiatt, James B. Coppess, and Laurence Gold; for the Association
of Trial Lawyers of America by Jeffrey L. Needle; for the Lawyers’ Com-
mittee for Civil Rights Under Law et al. by Michael C. Subit, Barbara R.
Arnwine, Thomas J. Henderson, Michael L. Foreman, Kristin M. Dadey,
Thomas W. Osborne, Laurie A. McCann, Daniel B. Kohrman, Melvin
Radowitz, Lenora M. Lapidus, Vincent A. Eng, Judith L. Lichtman, Joce-
lyn C. Frye, and Dennis C. Hayes; and for Ann B. Hopkins by Douglas
B. Huron.
Ronald B. Schwartz and Jenifer Bosco filed a brief for the National
Employment Lawyers Association as amicus curiae.

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
93 Cite as: 539 U. S. 90 (2003)
Opinion of the Court
vidual . . . , because of such individual’s race, color, religion,
sex, or national origin.” 78 Stat. 255, 42 U. S. C. § 2000e–
2(a)(1) (emphasis added). In Price Waterhouse v. Hopkins,
490 U. S. 228 (1989), the Court considered whether an em-
ployment decision is made “because of ” sex in a “mixed-
motive” case, i. e., where both legitimate and illegitimate
reasons motivated the decision. The Court concluded that,
under § 2000e–2(a)(1), an employer could “avoid a finding of
liability . . . by proving that it would have made the same
decision even if it had not allowed gender to play such a
role.” Id., at 244; see id., at 261, n. (White, J., concurring in
judgment); id., at 261 (O’Connor, J., concurring in judg-
ment). The Court was divided, however, over the predicate
question of when the burden of proof may be shifted to an
employer to prove the affirmative defense.
Justice Brennan, writing for a plurality of four Justices,
would have held that “when a plaintiff . . . 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 gen-
der into account.” Id., at 258 (emphasis added). The plu-
rality did not, however, “suggest a limitation on the possible
ways of proving that [gender] stereotyping played a motivat-
ing role in an employment decision.” Id., at 251–252.
Justice White and Justice O’Connor both concurred in
the judgment. Justice White would have held that the case
was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429
U. S. 274 (1977), and would have shifted the burden to the
employer only when a plaintiff “show[ed] that the unlawful
motive was a substantial factor in the adverse employment
action.” Price Waterhouse, supra, at 259. Justice O’Con-
nor, like Justice White, would have required the plaintiff to
show that an illegitimate consideration was a “substantial
factor” in the employment decision. 490 U. S., at 276. But,
under Justice O’Connor’s view, “the burden on the issue

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
94 DESERT PALACE, INC. v. COSTA
Opinion of the Court
of causation” would shift to the employer only where “a
disparate treatment plaintiff [could] show by direct evi-
dence that an illegitimate criterion was a substantial factor
in the decision.” Ibid. (emphasis added).
Two years after Price Waterhouse, Congress passed the
1991 Act “in large part [as] a response to a series of decisions
of this Court interpreting the Civil Rights Acts of 1866 and
1964.” Landgraf v. USI Film Products, 511 U. S. 244, 250
(1994). In particular, § 107 of the 1991 Act, which is at issue
in this case, “respond[ed]” to Price Waterhouse by “setting
forth standards applicable in ‘mixed motive’ cases” in two
new statutory provisions.1 511 U. S., at 251. The first es-
tablishes an alternative for proving that an “unlawful em-
ployment practice” has occurred:
“Except as otherwise provided in this subchapter, an
unlawful employment practice is established when the
complaining party demonstrates that race, color, reli-
gion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also
motivated the practice.” 42 U. S. C. § 2000e–2(m).
The second provides that, with respect to “a claim in which
an individual proves a violation under section 2000e–2(m),”
the employer has a limited affirmative defense that does not
absolve it of liability, but restricts the remedies available to
a plaintiff. The available remedies include only declaratory
relief, certain types of injunctive relief, and attorney’s fees
and costs. § 2000e–5(g)(2)(B).2 In order to avail itself of
1 This case does not require us to decide when, if ever, § 107 applies
outside of the mixed-motive context.
2 Title 42 U. S. C. § 2000e–5(g)(2)(B) provides in full:
“On a claim in which an individual proves a violation under section 2000e–
2(m) of this title and a respondent demonstrates that the respondent would
have taken the same action in the absence of the impermissible motivating
factor, the court—
“(i) may grant declaratory relief, injunctive relief (except as provided in
clause (ii)), and attorney’s fees and costs demonstrated to be directly

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
95 Cite as: 539 U. S. 90 (2003)
Opinion of the Court
the affirmative defense, the employer must “demonstrat[e]
that [it] would have taken the same action in the absence of
the impermissible motivating factor.” Ibid.
Since the passage of the 1991 Act, the Courts of Appeals
have divided over whether a plaintiff must prove by direct
evidence that an impermissible consideration was a “moti-
vating factor” in an adverse employment action. See 42
U. S. C. § 2000e–2(m). Relying primarily on Justice O’Con-
nor’s concurrence in Price Waterhouse, a number of courts
have held that direct evidence is required to establish liabil-
ity under § 2000e–2(m). See, e. g., Mohr v. Dustrol, Inc., 306
F. 3d 636, 640–641 (CA8 2002); Fernandes v. Costa Bros. Ma-
sonry, Inc., 199 F. 3d 572, 580 (CA1 1999); Trotter v. Board
of Trustees of Univ. of Ala., 91 F. 3d 1449, 1453–1454 (CA11
1996); Fuller v. Phipps, 67 F. 3d 1137, 1142 (CA4 1995). In
the decision below, however, the Ninth Circuit concluded oth-
erwise. See infra, at 97–98.
B
Petitioner Desert Palace, Inc., dba Caesar’s Palace Hotel &
Casino of Las Vegas, Nevada, employed respondent Catha-
rina Costa as a warehouse worker and heavy equipment op-
erator. Respondent was the only woman in this job and in
her local Teamsters bargaining unit.
Respondent experienced a number of problems with man-
agement and her co-workers that led to an escalating series
of disciplinary sanctions, including informal rebukes, a denial
of privileges, and suspension. Petitioner finally terminated
respondent after she was involved in a physical altercation
in a warehouse elevator with fellow Teamsters member Her-
bert Gerber. Petitioner disciplined both employees because
the facts surrounding the incident were in dispute, but
attributable only to the pursuit of a claim under section 2000e–2(m) of this
title; and
“(ii) shall not award damages or issue an order requiring any admission,
reinstatement, hiring, promotion, or payment, described in subparagraph
(A).”

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
96 DESERT PALACE, INC. v. COSTA
Opinion of the Court
Gerber, who had a clean disciplinary record, received only a
5-day suspension.
Respondent subsequently filed this lawsuit against peti-
tioner in the United States District Court for the District of
Nevada, asserting claims of sex discrimination and sexual
harassment under Title VII. The District Court dismissed
the sexual harassment claim, but allowed the claim for sex
discrimination to go to the jury. At trial, respondent pre-
sented evidence that (1) she was singled out for “intense
‘stalking’ ” by one of her supervisors, (2) she received
harsher discipline than men for the same conduct, (3) she
was treated less favorably than men in the assignment of
overtime, and (4) supervisors repeatedly “stack[ed]” her dis-
ciplinary record and “frequently used or tolerated” sex-based
slurs against her. 299 F. 3d 838, 845–846 (CA9 2002).
Based on this evidence, the District Court denied petition-
er’s motion for judgment as a matter of law, and submitted
the case to the jury with instructions, two of which are rele-
vant here. First, without objection from petitioner, the Dis-
trict Court instructed the jury that “ ‘[t]he plaintiff has the
burden of proving . . . by a preponderance of the evidence’ ”
that she “ ‘suffered adverse work conditions’ ” and that her
sex “ ‘was a motivating factor in any such work conditions
imposed upon her.’ ” Id., at 858.
Second, the District Court gave the jury the following
mixed-motive instruction:
“ ‘You have heard evidence that the defendant’s treat-
ment of the plaintiff was motivated by the plaintiff ’s sex
and also by other lawful reasons. If you find that the
plaintiff ’s sex was a motivating factor in the defendant’s
treatment of the plaintiff, the plaintiff is entitled to your
verdict, even if you find that the defendant’s conduct was
also motivated by a lawful reason.
“ ‘However, if you find that the defendant’s treatment of
the plaintiff was motivated by both gender and lawful
reasons, you must decide whether the plaintiff is entitled

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
97 Cite as: 539 U. S. 90 (2003)
Opinion of the Court
to damages. The plaintiff is entitled to damages unless
the defendant proves by a preponderance of the evi-
dence that the defendant would have treated plaintiff
similarly even if the plaintiff ’s gender had played no role
in the employment decision.’ ” Ibid.
Petitioner unsuccessfully objected to this instruction, claim-
ing that respondent had failed to adduce “direct evidence”
that sex was a motivating factor in her dismissal or in any
of the other adverse employment actions taken against her.
The jury rendered a verdict for respondent, awarding back-
pay, compensatory damages, and punitive damages. The
District Court denied petitioner’s renewed motion for judg-
ment as a matter of law.
The Court of Appeals initially vacated and remanded,
holding that the District Court had erred in giving the
mixed-motive instruction because respondent had failed to
present “substantial evidence of conduct or statements by
the employer directly reflecting discriminatory animus.”
268 F. 3d 882, 884 (CA9 2001). In addition, the panel con-
cluded that petitioner was entitled to judgment as a matter
of law on the termination claim because the evidence was
insufficient to prove that respondent was “terminated be-
cause she was a woman.” Id., at 890.
The Court of Appeals reinstated the District Court’s judg-
ment after rehearing the case en banc. 299 F. 3d 838 (CA9
2002). The en banc court saw no need to decide whether
Justice O’Connor’s concurrence in Price Waterhouse con-
trolled because it concluded that Justice O’Connor’s refer-
ences to “direct evidence” had been “wholly abrogated” by
the 1991 Act. 299 F. 3d, at 850. And, turning “to the lan-
guage” of § 2000e–2(m), the court observed that the statute
“imposes no special [evidentiary] requirement and does not
reference ‘direct evidence.’ ” Id., at 853. Accordingly, the
court concluded that a “plaintiff . . . may establish a violation
through a preponderance of evidence (whether direct or cir-
cumstantial) that a protected characteristic played ‘a moti-

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
98 DESERT PALACE, INC. v. COSTA
Opinion of the Court
vating factor.’ ” Id., at 853–854 (footnote omitted). Based
on that standard, the Court of Appeals held that respond-
ent’s evidence was sufficient to warrant a mixed-motive in-
struction and that a reasonable jury could have found that
respondent’s sex was a “motivating factor in her treatment.”
Id., at 859. Four judges of the en banc panel dissented, rely-
ing in large part on “the reasoning of the prior opinion of
the three-judge panel.” Id., at 866.
We granted certiorari. 537 U. S. 1099 (2003).
II
This case provides us with the first opportunity to consider
the effects of the 1991 Act on jury instructions in mixed-
motive cases. Specifically, we must decide whether a plain-
tiff must present direct evidence of discrimination in order
to obtain a mixed-motive instruction under 42 U. S. C.
§ 2000e–2(m). Petitioner’s argument on this point proceeds
in three steps: (1) Justice O’Connor’s opinion is the holding
of Price Waterhouse; (2) Justice O’Connor’s Price Water-
house opinion requires direct evidence of discrimination be-
fore a mixed-motive instruction can be given; and (3) the
1991 Act does nothing to abrogate that holding. Like the
Court of Appeals, we see no need to address which of the
opinions in Price Waterhouse is controlling: the third step
of petitioner’s argument is flawed, primarily because it is
inconsistent with the text of § 2000e–2(m).
Our precedents make clear that the starting point for our
analysis is the statutory text. See Connecticut Nat. Bank
v. Germain, 503 U. S. 249, 253–254 (1992). And where, as
here, the words of the statute are unambiguous, the “ ‘judi-
cial inquiry is complete.’ ” Id., at 254 (quoting Rubin v.
United States, 449 U. S. 424, 430 (1981)). Section 2000e–
2(m) unambiguously states that a plaintiff need only “demon-
strat[e]” that an employer used a forbidden consideration
with respect to “any employment practice.” On its face, the
statute does not mention, much less require, that a plaintiff

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
99 Cite as: 539 U. S. 90 (2003)
Opinion of the Court
make a heightened showing through direct evidence. In-
deed, petitioner concedes as much. Tr. of Oral Arg. 9.
Moreover, Congress explicitly defined the term “demon-
strates” in the 1991 Act, leaving little doubt that no special
evidentiary showing is required. Title VII defines the term
“ ‘demonstrates’ ” as to “mee[t] the burdens of production and
persuasion.” § 2000e(m). If Congress intended the term
“ ‘demonstrates’ ” to require that the “burdens of production
and persuasion” be met by direct evidence or some other
heightened showing, it could have made that intent clear by
including language to that effect in § 2000e(m). Its failure
to do so is significant, for Congress has been unequivocal
when imposing heightened proof requirements in other cir-
cumstances, including in other provisions of Title 42. See,
e. g., 8 U. S. C. § 1158(a)(2)(B) (stating that an asylum applica-
tion may not be filed unless an alien “demonstrates by clear
and convincing evidence” that the application was filed
within one year of the alien’s arrival in the United States);
42 U. S. C. § 5851(b)(3)(D) (providing that “[r]elief may not be
ordered” against an employer in retaliation cases involving
whistleblowers under the Atomic Energy Act where the em-
ployer is able to “demonstrat[e] by clear and convincing
evidence that it would have taken the same unfavorable per-
sonnel action in the absence of such behavior” (emphasis
added)); cf. Price Waterhouse, 490 U. S., at 253 (plurality
opinion) (“Only rarely have we required clear and convincing
proof where the action defended against seeks only conven-
tional relief ”).
In addition, Title VII’s silence with respect to the type of
evidence required in mixed-motive cases also suggests that
we should not depart from the “[c]onventional rul[e] of civil
litigation [that] generally appl[ies] in Title VII cases.” Ibid.
That rule requires a plaintiff to prove his case “by a prepon-
derance of the evidence,” ibid., using “direct or circumstan-
tial evidence,” Postal Service Bd. of Governors v. Aikens,
460 U. S. 711, 714, n. 3 (1983). We have often acknowledged

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
100 DESERT PALACE, INC. v. COSTA
Opinion of the Court
the utility of circumstantial evidence in discrimination cases.
For instance, in Reeves v. Sanderson Plumbing Products,
Inc., 530 U. S. 133 (2000), we recognized that evidence that a
defendant’s explanation for an employment practice is “un-
worthy of credence” is “one form of circumstantial evidence
that is probative of intentional discrimination.” Id., at 147
(emphasis added). The reason for treating circumstantial
and direct evidence alike is both clear and deep rooted: “Cir-
cumstantial evidence is not only sufficient, but may also be
more certain, satisfying and persuasive than direct evi-
dence.” Rogers v. Missouri Pacific R. Co., 352 U. S. 500,
508, n. 17 (1957).
The adequacy of circumstantial evidence also extends be-
yond civil cases; we have never questioned the sufficiency of
circumstantial evidence in support of a criminal conviction,
even though proof beyond a reasonable doubt is required.
See Holland v. United States, 348 U. S. 121, 140 (1954)
(observing that, in criminal cases, circumstantial evidence
is “intrinsically no different from testimonial evidence”).
And juries are routinely instructed that “[t]he law makes
no distinction between the weight or value to be given to
either direct or circumstantial evidence.” 1A K. O’Malley,
J. Grenig, & W. Lee, Federal Jury Practice and Instructions,
Criminal § 12.04 (5th ed. 2000); see also 4 L. Sand, J. Siffert,
W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury
Instructions ¶ 74.01 (2002) (model instruction 74–2). It is
not surprising, therefore, that neither petitioner nor its
amici curiae can point to any other circumstance in which
we have restricted a litigant to the presentation of direct
evidence absent some affirmative directive in a statute. Tr.
of Oral Arg. 13.
Finally, the use of the term “demonstrates” in other provi-
sions of Title VII tends to show further that § 2000e–2(m)
does not incorporate a direct evidence requirement. See,
e. g., 42 U. S. C. §§ 2000e–2(k)(1)(A)(i), 2000e–5(g)(2)(B). For
instance, § 2000e–5(g)(2)(B) requires an employer to “demon-

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
101 Cite as: 539 U. S. 90 (2003)
Opinion of the Court
strat[e] that [it] would have taken the same action in the
absence of the impermissible motivating factor” in order
to take advantage of the partial affirmative defense. Due
to the similarity in structure between that provision and
§ 2000e–2(m), it would be logical to assume that the term
“demonstrates” would carry the same meaning with respect
to both provisions. But when pressed at oral argument
about whether direct evidence is required before the partial
affirmative defense can be invoked, petitioner did not “agree
that . . . the defendant or the employer has any heightened
standard” to satisfy. Tr. of Oral Arg. 7. Absent some con-
gressional indication to the contrary, we decline to give the
same term in the same Act a different meaning depending
on whether the rights of the plaintiff or the defendant are at
issue. See Commissioner v. Lundy, 516 U. S. 235, 250 (1996)
(“The interrelationship and close proximity of these provi-
sions of the statute ‘presents a classic case for application of
the “normal rule of statutory construction that identical
words used in different parts of the same act are intended
to have the same meaning” ’ ” (quoting Sullivan v. Stroop,
496 U. S. 478, 484 (1990))).
For the reasons stated above, we agree with the Court
of Appeals that no heightened showing is required under
§ 2000e–2(m).3
* * *
In order to obtain an instruction under § 2000e–2(m), a
plaintiff need only present sufficient evidence for a reason-
able jury to conclude, by a preponderance of the evidence,
that “race, color, religion, sex, or national origin was a moti-
vating factor for any employment practice.” Because direct
evidence of discrimination is not required in mixed-motive
3 Of course, in light of our conclusion that direct evidence is not required
under § 2000e–2(m), we need not address the second question on which we
granted certiorari: “What are the appropriate standards for lower courts
to follow in making a direct evidence determination in ‘mixed-motive’
cases under Title VII?” Pet. for Cert. i.

539US1 Unit: $U68 [05-04-05 20:17:34] PAGES PGT: OPIN
102 DESERT PALACE, INC. v. COSTA
O’Connor, J., concurring
cases, the Court of Appeals correctly concluded that the Dis-
trict Court did not abuse its discretion in giving a mixed-
motive instruction to the jury. Accordingly, the judgment
of the Court of Appeals is affirmed.
It is so ordered.
Justice O’Connor, concurring.
I join the Court’s opinion. In my view, prior to the Civil
Rights Act of 1991, the evidentiary rule we developed to
shift the burden of persuasion in mixed-motive cases was
appropriately applied only where a disparate treatment
plaintiff “demonstrated by direct evidence that an illegiti-
mate factor played a substantial role” in an adverse employ-
ment decision. Price Waterhouse v. Hopkins, 490 U. S.
228, 275 (1989) (O’Connor, J., concurring in judgment).
This showing triggered “the deterrent purpose of the stat-
ute” and permitted a reasonable factfinder to conclude that
“absent further explanation, the employer’s discriminatory
motivation ‘caused’ the employment decision.” Id., at 265.
As the Court’s opinion explains, in the Civil Rights Act of
1991, Congress codified a new evidentiary rule for mixed-
motive cases arising under Title VII. Ante, at 98–101.
I therefore agree with the Court that the District Court did
not abuse its discretion in giving a mixed-motive instruction
to the jury.