United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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The burdens of proof set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), are inapplicable in dual or mixed motive cases. OFCCP v. Norfolk and Western Railway Co., 80-OFCCP-14, Deputy Under Secretary for Employment Standards Decision and Order of Remand, December 8, 1986, slip op. at 6. rev'g and remanding, ALJ Rec. Dec., December 16, 1983, ALJ Rec. Dec. and Order on Remand, June 20, 1989, dismissal aff'd, Special Assistant to the Assistant Secretary for Employment Standards Decision and Order, November 19, 1991.

The burdens of proof to be applied in a dual or mixed motive case are those enunciated in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1976). Id.

If plaintiff proves by a preponderance of evidence that the protected conduct was a motivating factor in the employer's action, then the employer must prove by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Id. at 7.

When there is an even balance of evidence as to whether the employee was discharged for legitimate or illegitimate reasons, the burdens of proof for a mixed motive case should be applied. Id. at 8

Associate Deputy Under Secretary for Employment Standards concluded that once a plaintiff raises an inference that the protected conduct or condition was a contributing factor in the decision to discharge, the burden of proof shifts to the defendant to demonstrate that it would have reached the same decision, even in the absence of the protected conduct or condition. OFCCP v. Norfolk and Western Railway, Co., 80-OFCCP-14, ALJ Rec. Dec. and Order on Remand, June 20, 1989, slip op. at 2, rev'd, Special Assistant to the Assistant Secretary for Employment Standards Decision and Order, November 19, 1991, slip op. at 4.

The Associate Deputy Under Secretary's decision with respect to shifting the burden of proof is the law of the case. Consequently, the entire record must be weighed and considered to determine whether defendant has proved by a preponderance of the evidence that it would have discharged complainant even if he did not have the prior disability resulting from the ankle injury sustained by him in the military service. Id. at 4, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Decision and Order, November 19, 1991.

The Secretary of Labor has adopted the two-part test for dual motive discharge cases set forth in Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977): once the plaintiff has shown that the protected activity played a role in the employer's decision, the burden shifts to the employer to persuade the court by a preponderance of the evidence that it would have discharged the plaintiff even if the protected activity had not occurred. OFCCP v. Keebler Co., 87-OFC-20, ALJ Rec. Dec. and Order, March 4, 1991, slip op. at 19; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

Where both legitimate and pretextual motives are involved in a termination decision, an analysis under the "dual motive discharge" doctrine may be appropriate. Ibid.; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

Under the Mt. Healthy dual motive test, contractor's decision to terminate epileptic employee for legitimate safety reasons is sufficient to justify her termination even if contractor's termination of employee on the grounds of alleged falsification of her application was pretextual. Ibid.; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

Under the dual motive discharge rule, once OFCCP has made out a prima facie case, the contractor must produce evidence of legitimate non-discriminatory reasons for its adverse action. The trier of fact may then conclude that 1) OFCCP has failed to meet its burden of proving discrimination; 2) the contractor's proffered reasons are pretextual; or 3) the contractor was motivated by both legitimate and illegitimate reasons. OFCCP v. Norfolk and Western Railway Co., 90-OFC-8, ALJ Rec. Dec. and Order, July 9, 1991, slip op. at 21, stipulated dismissal, September 30, 1991.

In a dual motive case, if the trier of fact concludes that the contractor was motivated by both legitimate and illegitimate reasons, the contractor has the burden to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the pretextual conduct. Ibid.

Even if complainant's eye condition was a factor in his dismissal, contractor met its burden of showing that it would have dismissed him solely for stating that he had used a substitute for his pre-employment medical examination, stating that he intended to injure himself on-the-job in order to collect a large settlement from his employer and for failing to attend a meeting with his supervisor about the alleged statements. Ibid.

In a dual motive case, an "inference" of discrimination is not sufficient to shift the burden to the employer to show that it would have discharged complainant even if he had not been handicapped. OFCCP v. Norfolk and Western Railway Co., 80-OFCCP-14, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order, November 19, 1991, slip op. at 4.

In a dual motive case, the burden shifts to the contractor to show that it would have discharged complainant even if he had not been handicapped only after trier of fact concludes that the contractor acted for a legitimate reason and because the employee was handicapped. Ibid.

Where it is determined that adverse action resulted from both legal and illegal motives, Mt. Healthy v. Doyle, 429 U.S. 274 (1977) applies, and the employer can avoid liability only by establishing that it would have made the same decision because of legitimate management reasons. Ibid.

The same decision rule articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), is compatible with Section 503 and VEVRA. Id. at 5, n.3.

The same decision rule articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), is applicable to Section 503 cases even though the dissent in that case rejected the rule and the plurality of four justices disregarded, for purposes of its discussion, the special context of affirmative action. The plurality did not hold that the same decision rule does not apply to affirmative action statutes. Ibid.

Where contractor discharged complainant for falsification of his medical history, the same decision rule requires contractor to demonstrate that, even if complainant had falsified something other than his medical history, the contractor still would have terminated his employment. Id. at 5-6.

Contractor met its burden of demonstrating that it would have discharged employee who falsified his medical history on his employment application even if employee had not been handicapped, where evidence showed that 1) supervisor made the decision to terminate employee for falsification before learning of the company physician's opinion that employee's prior ankle injury "would lead to nothing but trouble in the future;" 2) a union claim for reinstatement of employee was denied because of the employee's falsification; 3) contractor had an established policy of automatic dismissal for employee falsification of job applications and medical forms and enforced the policy against other employees; and 4) honesty was an essential quality for the position in issue. Id. at 6-11.

Where an employee has falsely represented facts on his employment application and the employer has consistently terminated employees for such falsification, the employer is not liable for terminating the employee even in the presence of a discriminatory motive. Id. at 14.

Evidence that contractor would not have hired complainant had it known of his prior ankle injury established that complainant's handicap was a motivating factor in the decision to discharge him. However, that evidence does not overcome evidence that, even if he had not been handicapped, contractor would have discharged him for falsifying his employment application and medical forms. Id. at 15.