with whom KOZINSKI, FERNANDEZ, and KLEINFELD, Circuit Judges, join, dissenting:
I respectfully dissent because the majority does not follow the Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), in Title VII mixed motives cases. The majority’s analysis is not persuasive and should be corrected because it disregards the holding of Hopkins that is reflected in Justice O’Connor’s concurring opinion.
In Hopkins, the plurality, comprised of four Justices, concluded that an employee should be able to recover under Title VII if gender was “a factor in the employment decision at the moment it was made,” id. at 241, 109 S.Ct. 1775, unless the employer, using objective evidence, could show by a preponderance of the evidence that it would have made the same decision absent the discriminatory motive. Id. at 244-45, 252, 109 S.Ct. 1775.
Justice White, joined by Justice O’Con-nor, concurred in the judgment. Justice White thought that the impermissible motive must have been a “substantial factor” in the employer’s decision and that the employer need not use “objective evidence” to make its same-decision showing. Id. at 259, 261, 109 S.Ct. 1775. Justice White would permit a mixed motive test in which the burden is shifted to the employer, but he would be liberal on the evidence an employer could offer. His view of when such a test should be available, however, is broader than Justice O’Connor’s.
Justice O’Connor would allow a plaintiff to use a mixed motive test only in narrow circumstances. In concurrence, Justice O’Connor held that she would require a Title VII plaintiff in a mixed motive case to produce “direct evidence” showing that “decisionmakers placed substantial negative reliance on [the] illegitimate criterion,” id. at 277, 109 S.Ct. 1775.
I do not point to Justice O’Connor’s concurring opinion merely to admire its common sense, though that is admirable. Rather, we must heed the direct evidence rule of Hopkins as controlling, and we may not diminish it, in the majority’s terms, as a “passing reference.” Justice O’Connor’s concurring opinion in Hopkins, which in considered language required the use of direct evidence to prove a mixed motive case, must be viewed as the holding of the Court, under the rule of Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“When a fragmented Court decides a casé and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds *866(citation and internal quotation marks omitted).
Because Justice O’Connor would permit the use of the mixed motives test only when direct evidence is present, Justice O’Connor “concurred in the judgment on the narrowest grounds,” see Marks 430 U.S. at 193, 97 S.Ct. 990, and her concurrence is to be considered the holding of Hopkins under the rule described in Marks. The view that Justice O’Connor’s opinion is the holding in Hopkins is supported by Congress’ actions in amending Title VII in 1991, by the holdings of other circuits on the issue, and by sound policy.
The 1991 amendments to Title VII did not modify the Supreme Court’s prior holding on the need for direct evidence. Subsection (m) of 42 U.S.C. § 2000e-2, which incorporates the premise of Hopkins that discrimination can be shown in a mixed motive case so long as it is one factor, was enacted two years after Hopkins:
Except as otherwise provided in this subchapter [42 U.S.C. §§ 2000e et seq.\ an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
42 U.S.C. § 2000e-2(m). Though Congress responded to other aspects of the Court’s holding in Hopkins, specifically the holding that an employer could completely avoid liability if it could show that it would have made the same decision absent the discriminatory motive, see 42 U.S.C. § 2000e — 5(g)(2); Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995), Congress, in amending Title VII, did not respond at all to Justice O’Connor’s direct evidence requirement, which had already been adopted by several circuit courts. Instead, the statutory amendments are silent as to that subject, neither praising nor condemning, neither adopting nor rejecting, and clearly not modifying Justice O’Con-nor’s test, which is properly viewed as the holding of Hopkins. This silence indicates that Congress left undisturbed Justice O’Connor’s holding and the prior circuit decisions that adhered to it. As we remain bound by the Supreme Court’s precedent, we must follow the direct evidence rule as explained in Justice O’Connor’s concurrence.
By vitiating Justice O’Connor’s direct evidence requirement, the majority’s holding puts our circuit in conflict with almost all others. See Jackson v. Harvard Univ., 900 F.2d 464, 467 (1st Cir.1990); Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir.1995); Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995); Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir.1993); Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510, 514 (6th Cir.1991); Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir.1997); Schleiniger v. Des Moines Water Works, 925 F.2d 1100, 1101 (8th Cir.1991); Heim v. Utah, 8 F.3d 1541, 1547 (10th Cir.1993); E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 923 (11th Cir.1990). As suggested in the decision of the three-judge panel in Costa, and as reflected in the cases cited above, these circuits have correctly viewed Justice O’Connor’s opinion in Hopkins as the holding of the Court and have followed it on that basis. See Costa v. Desert Palace, Inc., 268 F.3d 882, 886-88 (9th Cir.2001), vacated by 274 F.3d 1306 (9th Cir.2001). I agree with the other circuits and with the reasoning of the prior opinion of the three-judge panel in Costa, which I adopt because it is faithful to precedent.1 We *867should not rush to join a decision that turns its back on our colleagues’ wisdom and engages our circuit in a fanciful frolic of its own.
Finally, apart from our duty to abide by precedent, policy concerns favor adhering to Justice O’Connor’s view of mixed motives analysis. Mixed motives analysis is a departure from the well-established McDonnell Douglas framework. Whereas McDonnell Douglas requires the plaintiff to make a pretext showing once an employer puts forth evidence of legitimate nondiscriminatory reasons for the challenged employment practice, mixed motive analysis allows a plaintiff to prevail even when she cannot prove pretext.
To keep the mixed motive framework from overriding in all cases the McDonnell Douglas rule and the pretext requirement, which it clearly was not meant to do, mixed motive analysis properly is available only in a special subset of cases. Justice O’Connor’s direct evidence requirement meets this need: It requires the plaintiff to produce highly probative, direct evidence, before she may utilize the more lenient, mixed motives test. As a practical matter, without this or some similar constraint on when a plaintiff may invoke the mixed motives test, any plaintiff would opt for the Hopkins framework to avoid having to show pretext. The Supreme Court’s seminal opinion in McDonnell Douglas would be effectively overruled by an incorrect interpretation of Hopkins that jettisons the direct evidence requirement, an effect that could not have been intended in Hopkins and an effect that will create uncertainty in our settled law.
Taken with the idea that plaintiff, an unsatisfactory employee, is a “trailblazer,” the majority departs from the path of precedent and blazes its own trail beyond the frontiers of settled law into regions of error. I respectfully dissent.
. The three-judge panel held that:
Even if Costa's evidence of differential *867treatment were found to raise an inference of discrimination, it does not "prove that her gender played a motivating part in an employment decision.” Price Waterhouse, 490 U.S. at 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (plurality opinion); see also id. at 280, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (O'Connor, J., concurring) ("I read [today's decision] as establishing that in a limited number of cases Title VII plaintiffs, by presenting direct and substantial evidence of discriminatory animus, may shift the burden of persuasion to the defendant to show that an adverse employment decision would have been supported by legitimate reasons.''). Costa's case comes down to the fact that she was the only woman in her workplace and that in some instances she was treated less favorably than her male coworkers. But she has failed to produce evidence that she was treated differently because she was a woman — "direct and substantial evidence of discriminatory animus.” Accordingly, the district court erred in giving the jury a mixed-motive instruction. Because the court's instructions shifted the burden of proof to Caesars, the error was not harmless. See Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992). Caesars was prejudiced, moreover, by the court's instruction that the jury had “heard evidence that the defendant’s treatment of the plaintiff was motivated by the plaintiff’s sex,” a statement not supported by the record. Accordingly, the judgment must be vacated.
Costa, 268 F.3d at 889-90 (footnotes omitted).