Mixed-motive v. but-for instructions

On March 25, in a 2-1 opinion in Smith v. Xerox Corp. that will almost certainly go en banc, the 5th Circuit set out burdens of proof in a Title VII retaliation case. An employee filed a charge of discrimination and later was fired. She sued, claiming it was because of the charge. The employer said no, it was because of her performance. She won at trial. The employer appealed and argued that the jury was not instructed properly. The court gave a motivating factor instruction: The employee need only show the charge was one reason in the termination decision, even if there were other legitimate reasons (aka a mixed-motive instruction). The company said this was incorrect and that a "but for" instruction should have been given: The plaintiff must prove there was no legitimate motivation for the employer's action. Employers always want a but-for instruction, and employees always want a motivating-factor/mixed-motive instruction. (By the way, the court nuked one of my favorite arguments, namely that in a mixed-motives case the plaintiff must concede that discrimination was not the sole reason. As the 5th Circuit saw it, what plaintiff would agree that "Gee, I think you may some good reasons along with the bad reason for your retaliation?" My paraphrase. The court said that there will always be competing stories and that’s why we have juries.) This fight is of more than academic interest. While juries end up doing what they want, for the most part, regardless of the charge, these legal filters are how courts view a summary judgment or a judgment as a matter of law. They matter, and they matter a lot.