There are so many cases discussing the burden of proof in discrimination cases. It is even more complicated when the plaintiff is alleging mixed motives. Mixed motive cases refers to those cases that have a mix of motives, unlawful and lawful. For example, a plaintiff who alleges she was overlooked for a promotion due to nepotism and illegal ethnic origin discrimination. Nepotism is not a protected classification. Ethnic origin is.

In these mixed motive cases, Federal caselaw finds that the burden of proof shifts to the employer once the employee makes out a prima facie case or  has offered direct evidence. See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003) (affirming the use of circumstantial evidence in mixed motive cases. Mixed motive cases are no different than other discrimination cases in regard to types of proof); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (Even if a plaintiff offers only indirect evidence, that may be sufficient basis on which a jury may infer discriminatory motive. Proof that the employer’s explanation is unworthy of credence is one form of of circumstantial evidence that is probative of intentional discrimination, and it is one form that can be quite persuasive). As Justice O’Connor (who wrote the majority opinion in Reeves) explained in her concurrence, the passage of the Civil Rights Act of 1991 changed the burden of proof for claimants. Requiring direct evidence in mixed motive cases prior to 1991 was appropriate, but no longer appropriate after 1991. Desert Palace, at 102.

So, it is surprising that the Houston court of appeals ruled that under the Texas Commission of Human Rights Act, a plaintiff must present direct evidence in a mixed motive case before the burden of proof will shift to the defendant. In the case of KIPP, Inc. v. Whitehead, 2014 WL 3926562 (Tex.App. Houston 8/12/2014), the employer filed a plea to the jurisdiction. The plea to the jurisdiction is comparable to a Federal Rule 12(b)(6) motion. It attacks a plaintiff’s initial pleading for errors. Direct evidence, as the court rightly noted, is evidence which indicates a discriminatory bias without need of any inference. The Houston court of appeals ruled that in the absence of a prima facie case, the plaintiff must allege direct evidence. See decision here.

Even so, the Houston court did find that the plaintiff had shown sufficient evidence of pregnancy discrimination. It found that she had made out a prima facie case of discrimination based on her gender and pregnancy. It also found that a woman who has been pregnant but still suffers discrimination can state a cause of action under Texas Labor Code Sec. 21.

Of course, one must wonder what this court considers sufficient evidence to constitute “direct” evidence. In KIPP, the employer told the employee she did not fit in anymore. He said he had given her job away because she had been pregnant. KIPP terminated her employment three months after she returned from her pregnancy. If these sorts of statements are not direct evidence, then nothing is.