DESPITE THE SMOKE, THERE IS NO GUN - DIRECT EVIDENCE REQUIREMENTS IN MIXED-MOTIVES EMPLOYMENT LAW AFTER PRICE WATERHOUSE V HOPKINS

Plaintiffs in mixed-motives employment discrimination suits often face the daunting task of producing direct evidence of the defendant's imp roper motive, despite the fact that discrimination may be subtle or co vert. Charting the emergence of mixed-motives liability, Michael Zubre nsky argues that courts requiring such ''smoking gun '' evidence are u nfaithful to the Supreme Court's 1989 Price Waterhouse v. Hopkins deci sion. Mr. Zubrensky surveys the various circuit courts' interpretation s of Price Waterhouse and identifies three evidentiary standards: dire ct evidence, ''circumstantial-plus'' evidence, and a nonrestrictive st andard. Noting the divergence among them, he urges Congress to lift th e direct evidence burden, as the Rhode Island legislature has, by enac ting an evidentiary standard for mixed-motives cases that is more in k eeping with the Federal Rules of Evidence, Court precedent, and the sp irit of the Civil Rights Act of 1991.