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On September 19, 2024, the Eleventh Circuit rendered its opinion in McCreight et Wester v. AuburnBank, et al., Case No. 22-12577 (11th Cir. Sept. 19, 2024).[1] As the Eleventh Circuit noted, the court has recently been trying “to clear a path” regarding Title VII claims, providing clearer guidance for practitioners and litigants.[2] In McCreight, the court sought to “clear up two other strands of [its] case law: sex-plus claims and mixed-motive theories of liability.”[3] This blog post will discuss the McCreight opinion and discuss its implications moving forward.

As noted by the court, “[a] sex-plus claim is based on one kind of discrimination—sex discrimination—targeting one subclass of a sex.  Black women and mothers are subcategories of women that have been recognized.  So too for older women,” the category at issue in McCreight.[4] Regarding the mixed-motive theory of liability, the court stated that it allows for “liability when an employment decision motivated by a legitimate reason—usually poor work performance—is also infected by an illegitimate reason—illegal discrimination.”[5] The court noted that “because mixed-motive discrimination is a theory of liability, not a type of claim, it need not be alleged in the complaint to survive; raising a mixed-motive argument by summary judgment offers notice to defendants about what to defend, and to courts about what to decide.”[6]

Turning to the case at issue, the Eleventh Circuit affirmed the summary judgment granted by the district court in favor of the defendants, holding that the plaintiffs did not produce enough evidence for a reasonable jury to find in their favor.[7] The facts of the case are not relevant for purposes of this blog post—suffice it to say that the plaintiffs argued that their terminations violated Title VII and the Age Discrimination in Employment Act and related state statutes.[8] The court began by examining the sex-plus claim and providing clarification regarding the mixed-motive theory of liability, as McCreight had conflated the two concepts.[9] The court noted that “[i]n short, sex-plus-age is a type of employment discrimination claim a plaintiff can bring, and mixed-motive is a theory of causation that a plaintiff can rely on to support that claim.”[10] The court held that although the McCreight was correct that a mixed-motive theory did not need to be alleged in the complaint to survive, she had not raised the theory at all at the district court level, thus waiving that claim.[11]

Regarding the sex-plus-age claim, the court noted that “[i]n a sex-plus-age case, the basis for the alleged discrimination is sex; the age factor’s work is in defining the subgroup in which the alleged sex discrimination occurred.”[12]  Thus, such claims fall within Title VII.[13]  As stated by the court, “[s]ingling out only one subgroup of a sex for discriminatory treatment thus does not insulate an employer from liability.”[14] A plaintiff can support such a claim (or any other discrimination claim) “through either a single- or mixed-motive theory[.]”[15]

When raising a mixed-motive theory of liability, “the employee contends that both legal and illegal reasons motivated her firing.”[16] Under the mixed-motive theory, “a plaintiff need only show that an illegal reason played a party in the decision—not that it had a dispositive role.”[17] Regarding remedies under a mixed-motive theory, the court notes that “if a plaintiff prevails under a mixed-motive theory, an employer can still avoid damages and certain equitable relief by showing that it would have taken the same action even without the illegal motivation. . . . This affirmative defense is known as the mixed-motive or same-decision defense.”[18] As the court explained, a plaintiff is not required to plead the motive at the outset of the case, as often discovery is needed to determine “which causation standard to pursue.”[19] According to the court, “[s]o long as the factual basis is properly alleged, an employee can raise a mixed-motive theory of liability as late as summary judgment. What is important is not when the theory is raised, but whether the defendant has enough notice of it.”[20] The court emphasized that plaintiffs cannot “spring new theories of liability that were not considered or defended against at summary judgment” on appeal, as McCreight had attempted in the case at issue.[21]

Applying the sex-plus and mixed-motive analyses to the case before it, the court rejected the claims made by the plaintiffs. As noted above, the court held that McCreight did not raise the mixed-motive theory in the district court, thus waiving that claim.[22] The court stressed that the mixed-motive theory does not invoke “a diminished standard of proof,” as seemingly argued by McCreight.[23] In reviewing the facts, the court determined that neither McCreight nor Wester offered enough evidence to have a reasonable jury find in their favor. As the court concluded, “[o]ur employment discrimination caselaw provides many approaches for plaintiffs seeking relief from discrimination. But all roads lead to Rule 56 (the summary judgment rule)—so long as a plaintiff offers enough evidence for a reasonable jury to infer illegal discrimination, her Title VII claim will survive summary judgment.”[24] In McCreight, the appellants failed to meet this burden, and the court affirmed the granting of summary judgment in favor of the defendants below.[25]

Navigating a discrimination case is a difficult journey and requires competent legal counsel. Our firm has extensive experience in all workplace matters. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion can be found at https://media.ca11.uscourts.gov/opinions/pub/files/202212577.pdf (last visited Oct. 24, 2024).

[2] McCreight, at *2.

[3] Id.

[4] Id.

[5] Id., at *3.

[6] Id.

[7] Id.

[8] Id., at *7.

[9] Id., at *9.

[10] Id.

[11] Id., at *9-10.

[12] Id., at *11.

[13] Id., at *12.

[14] Id., at *10.

[15] Id., at *12.

[16] Id. (citation omitted).

[17] Id., at *12-13.

[18] Id., at *13.

[19] Id., at *14.

[20] Id., at *15.

[21] Id., at *16.

[22] Id., at *17.

[23] Id., at *18.

[24] Id., at *34.

[25] Id.

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