Healthy, the District Court found that the employer was motivated by both legitimate and illegitimate factors. See Kingston v. Chicago & N.W.R. Downplaying the novelty of its opinion, the plurality claims to have followed a "well-worn path" from our prior cases. While the danger of forcing employers to engage in unwarranted preferential treatment is thus less dramatic in this setting than in the situation the Court faced in Watson, it is far from wholly illusory. But since those comments seem to influence the decision, I turn now to that part of the plurality's analysis. The path may be well worn, but it is in the wrong forest. Such a departure requires justification, and its outlines should be carefully drawn. 7213 (1964). See, e.g., Fields v. Clark University, 817 F.2d 931, 935-937. L. No. See McDonald v. Santa Fe Trail Tranportation Co., 427 U. S. 273, 427 U. S. 282, n. 10 (1976). This conclusion was reasonable in light of the testimony at trial of a member of both the Policy Board and the Admissions Committee, who stated that he had "no doubt" that Beyer would discuss with Hopkins the reasons for placing her candidacy on hold, and that Beyer "knew exactly where the problems were" regarding Hopkins. The intent to drive employers to focus on qualifications rather, than on race, religion, sex, or national origin is the theme of a good deal of the statute's legislative history. Lower courts long have had difficulty applying McDonnell Douglas and Burdine. ); ante, at 278 (opinion of O'CONNOR, J.). at 396 (quoting Transcript, Hopkins v. Price Waterhouse, 737 F. Supp. However, in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), the United States Supreme Court held that discrimination based on the failure of an IDC Quarterly Volume 26, Number 4 (26.4.4) | Page 2 To demonstrate the defects in the plurality's reasoning, it is necessary. Certainly a plausible -- and, one might say, inevitable -- conclusion to draw from this set of circumstances is that the Policy Board, in making its decision, did in fact take into account all of the partners' comments, including the comments that were motivated by stereotypical notions about women's proper deportment. at 13088 (remarks of Sen. Humphrey) ("What the bill does . 706, 102 L.Ed.2d 854 (1989). This is nothing more than a label, and one not found in the language or legislative history of Title VII. an employer considers both gender and legitimate factors at the time of making a decision, that decision was 'because of' sex and the other, legitimate considerations-even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account." Notes ^1 The plurality's description of its own standard is both hypothetical and retrospective. 555, 50 L.Ed.2d 450 (1977), a case which, like this one, presented the problems of motivation and causation in the context of a multimember decisionmaking body authorized to consider a wide range of factors in arriving at its decisions. In this case, Hopkins plainly presented a strong case both of her own professional qualifications and of the presence of discrimination in Price Waterhouse's partnership process. The Transpo tation Management decision was based on the deference that the Court traditionally accords NLRB interpretations of the statutes it administers. This decision builds on the Supreme Court’s decision in Price Waterhouse v. Hopkins in 1989, which held that the prohibition against sex discrimination includes protection for people who do not conform to gender stereotypes. v. Doyle, 429 U. S. 274 (1977), and NRLB v. Transportation Management Corp., 462 U. S. 393 (1983), but these cases were decided in different contexts. If the employer fails to carry this burden, the factfinder is justified in concluding that the decision was made "because of " consideration of the illegitimate factor, and the substantive standard for liability under the statute is satisfied. Healthy City Bd. ... to reconcile its internal inconsistency on the causation issue by describing the employer's showing as an "affirmative defense." . [4]. 1981, No. In this Court, Hopkins for the first time argues that Price Waterhouse violated § 703(a)(2) when it subjected her to a biased decisionmaking process that "tended to deprive" a woman of partnership on the basis of her sex. 30); another suggested that she "overcompensated for being a woman" (Defendant's Exh. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 462 U. S. 683 (1983), quoting Los Angeles Dept. A. Croson Co., 488 U. S. 469 (1989). See also Board of Trustees of Keene State College v. Sweeney, 439 U. S. 24, 439 U. S. 29 (1978) (STEVENS, J., dissenting). Sometimes this may mean that no finding of discrimination is justified even though a qualified employee is passed over by a less than admirable employer. In fact, an individual plaintiff who has shown that an illegitimate factor played a substantial role in the decision in her case has proved more than the class member in a Teamsters-type action. See McQuillen v. Wisconsin Education Association Council, 830 F.2d 659, 665 (CA7 1987), cert. 110 Cong.Rec. See 462 U.S. at 462 U. S. 400, n. 5. I would remand the case for entry of judgment in favor of Price Waterhouse. of Ed. . Aikens, supra, 460 U.S., at 714, n. 2, 103 S.Ct., at 1481, n. 2. Critics of the bill that became Title VII labeled it a "thought control bill," and argued that it created a "punishable crime that does not require an illegal external act as a basis for judgment." 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