Under Title VII, in “mixed motive” discrimination cases (i.e., discrimination motivated in part, but not entirely, by an impermissible factor), an employer may limit Plaintiff’s recovery where it can show that it would have made the “same decision,” regardless of the impermissible motive.  But the employer may still be compelled to reimburse the plaintiff’s costs and attorney fees.

In Carter v. Luminant Power Services Company, the 7th Circuit Court of Appeal determined that such cost-shifting did not apply where retaliation was a motivating factor, only to cases where “race, color, religion, sex, or national origin” was the motivating factor.

The ruling is good for employers, but it is unlikely to have any substantial effect on how employment cases are litigated.  Retaliation is still subject to penalties under Title VII, as well as other state and federal laws, and the “mixed motive” theory, a compromise position, is not usually the primary theory espoused by either side.

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