with whom
HEANEY and McMILLIAN, Circuit Judges, join, concurring.I concur in Judge Arnold’s well-written opinion.
I write separately for two reasons: (1) to voice my disagreement with the dissent and (2) to state specially, although I fully join Judge Arnold’s opinion, that I seriously question the propriety of applying the “same decision” test to “mixed motive” cases in a Title VII context.1
In its petition for a rehearing en banc, the government did not dispute the finding of liability in the panel opinion and moved only to have this court adopt the “same decision” test for determining a remedy on remand. The liability issue was not argued by the respective parties nor was it considered by the court en banc. The dissent now, without discussion of the factual testimony, finds no liability at all and affirms the district court outright.
The original panel opinion, Bibbs v. Block, 749 F.2d 508 (8th Cir.1984) (Lay, C.J., and Fairchild & McMillian, JJ.) reviewed the factual findings of the district court and held that the district court’s finding that race was not a “determining factor” in the employment decision was clearly erroneous and not supported by the record. The record reveals that Tresnak, who was shown to be racially biased, was the key figure in the promotion decision. The district court found that the selection committee lacked credibility in their testimony regarding the process of selection and that the selection process was suspect due to its subjective nature.
The dissent misreads Judge Arnold’s opinion as establishing a new test, that of “discernible factor.” The district court simply used the word “discernible” as an adjective to describe a racial factor which the court was able to “make out, * * * detect, * * * recognize, or identify as separate and distinct.”2 The majority opinion does not substitute the phrase “discernible factor” as a test to replace causation. Judge Arnold’s analysis of the record, ante at 1323-1324, finds that:
[O]nce the plaintiff has established a violation of Title VII by proving that an unlawful motive played some part in the employment decision or decisional process, the plaintiff is entitled to some relief, including, as appropriate, a declaratory judgment, partial attorney’s fees, and injunctive relief against future or continued discrimination. However, even after a finding of unlawful discrimination is made, the defendant is allowed a further defense in order to limit the relief. The defendant may avoid an award of reinstatement or promotion and back pay if it can prove by a preponderance of the evidence that the plaintiff would not have been hired or promoted even in the absence of the proven discrimination.
This language does not establish a new test,3 but simply restates the test in Texas *1326Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), in a different way.
In the dissent’s focus on the word “discernible” it overlooks the fact that there are many ways to say the same thing. It also ignores the fact that the district court improperly quantified the employer’s intent to discriminate when it found that although race was a discernible factor it was only a “minor" factor in the employment decision. The Supreme Court has expressly held that it is improper to quantify discriminatory intent. As the Supreme Court stated in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 277, 99 S.Ct. 2282, 2295, 60 L.Ed.2d 870 (1979): “Discriminatory intent is simply not amenable to calibration. It either is a factor that has influenced the legislative choice or it is not."4
The dissent’s outright affirmance of the district court also fails to mention the fact that the district court, in using the same decision test, improperly placed the burden of proof onto the plaintiff to show that the same decision would not have been made absent race. Even under the principles articulated in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), this is clear error. The plaintiff here is asked to establish much more than “but for” causation — he is improperly required to prove that race was the sole cause.
The same decision test
I now address my view that the same decision test should not apply to mixed motive eases, even when the burden of proof is properly placed on the employer.
Title VII is designed to protect victims against invidious discrimination which in any way influences or motivates an employment decision. That the employer has other nondiscriminatory reasons which enter into the decision is irrelevant. It is clear under the relevant case law that racial discrimination need not be the “sole” cause motivating the employer. Race is either a factor in the employment decision or it is not.
There is precedent for use of the same decision test in employment discrimination cases where liability is based upon a class action or in a disparate impact context.5 But to extend such a test to cases of disparate treatment will provide hollow victories to most victims of racial discrimination and little real relief. Many litigants who successfully prove racial discrimination in the employment decision will now find that the spoils do not go to the victim but only to the victim’s attorneys. Plaintiffs such as Bibbs will obtain attorneys’ fees and perhaps injunctive or declaratory relief, but no award of back pay or reinstatement. After proving his or her case at the liability stage, to gain any other relief a plaintiff in an alleged mixed motive case will now face the additional uphill battle to rebut defendant’s claim that the same decision would have been made absent race. Although Judge Arnold adopts the “but for” test for liability in McDonald v. Santa Fe Trail *1327Transportation Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493 (1976), the practical effect will be that before a plaintiff can recover damages in a Title VII case, he or she will have to convince the court that race was the sole cause. Surely Congress did not intend such a result.
Certain well-established principles should govern our review of the district court’s decision. First, under the teaching of Bur-dine, “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Second, as the district court acknowledged and as stated above, in a Title VII disparate treatment action a plaintiff need not prove that the sole reason for the employment decision was the discrimination but is required to show no more than that race was a “but for” cause. McDonald, 427 U.S. at 282 n. 10, 96 S.Ct. at 2580 n. 10. The district court, reciting the confusion of our own cases and those of other circuits,6 resolved the apparent dilemma by finding that “racial considerations probably did play a minor role in the selection process, through the influence of Tresnak, but that plaintiff would not have been selected for the position even if his race had been disregarded.” On the surface, the “same decision” reasoning is attractive and would simply relegate to appellate review the issue of whether the district court’s factual findings are clearly erroneous. However, when race is shown to have been a discernible factor in the employment decision, as the district court found below, I conclude that the same-decision test is inappropriate under the principles of Burdine. Here, plaintiff has done far more than put forth a prima facie case of discrimination. He has successfully proven that race was a discriminatory factor in his employer’s refusal to promote him. Rather than requiring proof that race was a “substantial” as opposed to a “minor” factor in the decision, Title VII simply requires that a plaintiff prove his or her claim of unlawful discrimination by persuading the court that “a discriminatory reason more likely [than not] motivated the employer.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Nothing more is required of a plaintiff to establish liability under Title VII.
Once the trier of fact has found that race was a factor “in any way” influencing the decision, it is error to attempt to quantify race as a minor factor. See 42 U.S.C. § 2000e-2(a)(2) (1970 ed. Supp. V). Under the factual record presented here, once race was found to be a discernible factor in or influencing the decision, the additional conclusion that it was a minor factor is irrelevant to the Title VII analysis.
When race is shown at the liability stage to have been a factor in the employment decision, the employer should not be able to exculpate its proven invidious discriminatory practices by having a second chance to show that racial considerations did not affect the decision’s outcome. This clearly contradicts Congress’ purpose in enacting Title VIL I find that the record supports a finding that race clearly influenced the decision. Under these circumstances, I would reject as irrelevant and clearly erroneous the district court’s unnecessary finding that “plaintiff would not have been selected for the position even if race had been disregarded.”
The language of Title VII plainly recognizes the broad purpose of eliminating consideration of race from employment decisions. “Title VII prohibits all discrimination in employment based upon race, sex, and national origin. ‘The broad, overriding interest, shared by employer, employee, *1328and consumer, is efficient and trustworthy workmanship assured through fair and ... neutral employment and personnel decisions.’ ” Burdine, 450 U.S. at 259, 101 S.Ct. at 1096 (emphasis added) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 98 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973)). As Justice Marshall has stated:
[I]t is important to bear in mind that Title VII is a remedial statute designed to eradicate certain invidious employment practices. The evils, against which it is aimed are defined broadly: “to fail ... to hire or to discharge ... or otherwise to discriminate ... with respect to ... compensation, terms, conditions, or privileges of employment [because of such individual’s race]” and “to limit, segregate, or classify ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status [because of such individual’s race].” 42 U.S.C. § 2000e-2(a) (1970 2d., Supp. V) (emphasis deleted).
International Brotherhood of Teamsters, 431 U.S. at 381, 97 S.Ct. at 1878 (Marshall, J., concurring and dissenting).
Although proof of actual motivation would be within a defendant’s knowledge, I find it highly inappropriate, under the Bur-dine principles governing Title VII cases, to adopt the Mt. Healthy rationale and shift the burden to the defendant to show that plaintiff would not have been promoted even if his race had not been considered. See also Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); NLRB v. Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 150 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982) (NLRB adopts the Mt. Healthy test to determine liability in § 8(a)(3) cases). Mt. Healthy exacts a distinctly different standard relating to recovery and burden of proof in constitutionally-protectéd conduct cases than does Burdine, which applied Title VIL A mixed motive case should be tried under the same tests set forth in McDonald and Burdine. To hold otherwise is to inject total confusion into the already difficult process faced by litigants who pursue relief under Title VII.7
. Notwithstanding my disagreement with the same decision test, in order to provide a majority opinion and a clear test to follow in this circuit I join Judge Arnold's application of the same decision test.
. Webster’s Third New International Dictionary (Unabridged) 644 (1981).
. Judge Arnold’s reasoning is similar to the approach of the Eleventh Circuit in Title VII disparate treatment cases where there is direct evidence proving that the defendant-employer acted with a discriminatory motive. See e.g., Joshi v. Florida State University Health Center, 763 F.2d 1227, 1236 (11th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 347, 88 L.Ed.2d 293 *1326(1985) (defendants failed to meet burden to prove those ultimately employed were better qualified than plaintiff); Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984) (absent finding that employer set aside own bias in hiring recommendations, court cannot conclude that employer met its burden to prove same decision would have been made absent discrimination).
. See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977) ("Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated soley by a single concern, or even that a particular purpose was the 'dominant' or ‘primary’ one.").
. Cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 359 n. 45, 97 S.Ct. 1843, 1867 n. 45, 52 L.Ed.2d 396 (1977). ("[T]he employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer's evaluation of the applicant's qualifications, the company’s records were the most relevant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decision-making process.”)
. See Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1197 (8th Cir.1982), cert. denied, 460 U.S. 1080, 103 S.Ct. 1767, 76 L.Ed.2d 342 (1983) (determining factor); Nanty v. Barrows Co., 660 F.2d 1327, 1333 (9th Cir.1981) (same decision test at relief stage); Williams v. Boorstin, 663 F.2d 109, 117 (D.C.Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 842 (1981) (same decision test at liability stage); Satz v. ITT Financial Corp., 619 F.2d 738, 746 (8th Cir.1980) (a factor); Marshall v. Kirkland, 602 F.2d 1282, 1289 (8th Cir.1979) (motivating factor); Cleverly v. Western Electric Co., 594 F.2d 638, 641 (8th Cir.1979) (determining factor).
. This discussion finds analogous aid in causation principles developed in tort law. In order to establish liability, a plaintiff does not have to show that the defendant's negligence (or here, racial discrimination) was the sole proximate cause of the accident. The burden is on the plaintiff only to show that the defendant’s negligence was a proximate cause. In other words, the trier of fact must determine whether the defendant’s negligence (discrimination) was a factor which served as a proximate cause of the accident (employment decision).