Employment Litigation · Primary-source case analysis

Desert Palace: Circumstantial Evidence Can Support a Title VII Mixed-Motive Instruction

By Aneeta Mishra and Timothy Chan

Published September 13, 2026

Desert Palace, Inc. v. Costa rejected a special direct-evidence threshold for Title VII's statutory mixed-motive framework.

The statute used no direct-evidence requirement

Section 2000e-2(m) asks whether the plaintiff demonstrates that a protected trait was a motivating factor.

Circumstantial proof is not second-class evidence

Factfinders routinely rely on circumstantial evidence, including under demanding burdens of proof.

The ordinary proof standard controlled

A plaintiff may use direct or circumstantial evidence sufficient for a reasonable jury to find a motivating factor.

The judgment was affirmed

The mixed-motive instruction was proper on the record, and the employee's verdict remained in place.

Key takeaways

• Organize direct and circumstantial evidence together.
• Identify evidence connecting the protected trait to the decision.
• Request instructions that track the statutory motivating-factor text.
• Analyze the employer's same-decision position separately from liability.