Causation, Price Waterhouse, Uncategorized

Causation, Part 10 (Price Waterhouse)

The last causation post discussed Justice O’Connor’s concurrence in Price Waterhouse. Justice White also concurred in the judgment in Price Waterhouse and offered a different reasoning for the outcome. Justice White agreed that a substantial factor test was appropriate for Title VII disparate treatment cases. However, he did not arrive at this test through a tort causation analysis. Instead, Justice White applied the reasoning used in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), a case considering the causation question in the context of a public employee who alleged he was not rehired because of his exercise of his First Amendment rights. In Mt. Healthy, the Court placed the initial burden on the worker to establish that his conduct was a substantial or motivating factor in the decision. The employer would then be required to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the conduct protected by the First Amendment.

Justice White noted that he agreed with both the plurality and with Justice O’Connor about the way the test should operate. Justice White disagreed about how to reach that result. He did not think Justice O’Connor’s tort-based “but for” cause analysis was necessary. Rather, the motivating factor test could be justified by applying Mt. Healthy to Title VII cases.

Justice White also opined about the intersection of the motivating or substantial factor test with the existing McDonnell Douglas framework. He characterized these two tests as separate from one another. He believed the McDonnell Douglas test should be used in cases where there was only one reason for an employment decision and that the substantial or motivating factor test should be used when both legitimate and discriminatory motives may be at work.

McDonnell Douglas

McDonnell Douglas, Part II (The District Court)

The Supreme Court’s decision in McDonnell Douglas is a good example of appellate courts unnecessarily complicating the law. Going back and looking at the trial court’s opinion in the case illustrates an easier way of framing discrimination questions.

The facts of McDonnell Douglas, as recounted by the federal district court opinion, are rather straightforward. For blogging purposes, I will not provide separate citations for each sentence, but the facts of the case, as recounted by the trial court, are available at the following cite: Green v. McDonnell-Douglas Corp., 318 F. Supp. 846, 847 (E.D. Mo. 1970). In recounting the trial court’s decision, I am not claiming that it accurately captured all of the facts of the underlying case. Rather, I am showing how the case was framed and viewed for purposes of litigation.

Mr. Green worked for McDonnell Douglas as a mechanic. His employment record demonstrated that his work was viewed as satisfactory. In 1963, Mr. Green applied to work in the Electronic Equipment Division. The supervisors in the Electronic Equipment Division informed Mr. Green that if he transferred into the department, there was a possibility of a layoff, due to the short term of the project upon which they were working. Mr. Green accepted a position in the Electronic Equipment Division.

In the spring of 1964, employees in the Electronic Equipment Division were laid off; however, Mr. Green was not one of these employees. It became clear that more employees in the department would be laid off. The company used a semiannual ranking of employees to determine which employees would be laid off. The company tried to place employees on the layoff list in other jobs within the company, and gave a voluntary test “to help determine the qualifications of the men for higher job classifications which were open.” Plaintiff chose not to take the test.

It was undisputed that plaintiff had been involved in civil rights related protest activities since the early 1960s. During meetings related to the layoff, Mr. Green told company officials that he believed he was being laid off because of his participation in these activities. The company officials told Mr. Green this was not the case. On August 28, 1964, Mr. Green and eight other technicians were laid off.

After his layoff, Mr. Green engaged in numerous protests against McDonnell Douglas, including writing letters, filing charges and picketing. In October of 1964, Mr. Green, along with other members of the Congress on Racial Equality, stopped their cars on the main roads to McDonnell Douglas’s plant during the time of a shift change. Mr. Green may also have been involved in a second demonstration that caused McDonnell Douglas’s employees to be locked in the building at the end of their work day.

On July 26, 1965, Mr. Green applied for an open position at McDonnell Douglas. Even though he was qualified, he was not offered the job. The defendant claimed that it rejected the plaintiff due to his involvement in the demonstrations, which the company considered to be illegal actions.

Mr. Green brought two claims against McDonnell Douglas. First, he claimed that his original 1964 layoff violated 42 U.S.C. § 1981 because he was fired due to his race and participation in civil rights activities. Second, Mr. Green claimed that the company violated 42 U.S.C. § 1981 and 42 U.S.C. § 2000e-3(a) by refusing to rehire him based on his race, his participation in civil rights activities, and his opposition of practices that were deemed unlawful under the Civil Rights Act of 1964.

Prior to the trial on the merits, the trial court dismissed plaintiff’s Title VII claim that the company refused to rehire him based on his race. The trial court held that because the Equal Employment Opportunity Commission (EEOC) had not issued a reasonable cause finding on plaintiff’s refusal to rehire claim based on race, the court did not have jurisdiction to consider this claim. (Editor’s Note: This was an incorrect reading of Title VII’s requirements). The only Title VII claim considered by the district court was plaintiff’s claim that McDonnell Douglas refused to rehire him in retaliation for his participation in protest activities. However, plaintiff’s section 1981 claim that he was not rehired based on his race still remained for resolution by the trial court.

The trial court dismissed the layoff claim as untimely, leaving the refusal to rehire claims for trial by the court. In ruling on the discrimination and retaliation claims, the trial court articulated that “the controlling and ultimate fact questions are: (1) whether the plaintiff’s misconduct is sufficient to justify defendant’s refusal to rehire, and (2) whether the ‘stall in’ and the ‘lock in’ are the real reasons for defendant’s refusal to rehire the plaintiff.” The trial court held that the refusal to rehire (brought under section 1981) was not based on racial prejudice. Further, the trial court found that plaintiff’s participation in the stall-in and lock-in constituted illegal activities, and that the company could legitimately base its decision not to rehire plaintiff on his participation in this illegal conduct.

Remember, that this case was decided at a time when jury trials were not available under Title VII, and the judge sat as a factfinder at trial. Although some may disagree with the outcome of the case, the trial court judge framed the analytical question correctly. The question was what motivated the failure to re-hire. When the case reaches the United States Court of Appeals for the Eighth Circuit, that court greatly complicates the underlying question.

McDonnell Douglas

McDonnell Douglas, Part I

In a new series of posts, I want to start a conversation about whether the courts should keep using the McDonnell Douglas test. While the test played an important role in helping courts understand how discrimination happens, its complicated, three-part burden-shifting structure is largely unhelpful and should be abandoned. I will show how courts have diminished the test’s importance over time.

Since 1973, both courts and litigants have struggled to understand and apply the three-step burden-shifting framework. The test was originally designed to make it easier for plaintiffs to present cases involving circumstantial evidence. But, its structure is so confusing that it ultimately spawned decades of legal wrangling about the legal contours of the test and about how the test fits in with other ways of understanding discrimination. This legal wrangling focused courts on hyper-technical details of discrimination frameworks and away from the important question of whether discrimination actually happened in a particular case.

McDonnell Douglas helped courts understand that discrimination might be happening when an employer lies about the reason it took a particular action. It also helped courts understand that discrimination might happen when an employer treats similarly situated people differently. However, the complex burden-shifting framework is no longer needed to understand these points. In a series of posts, I will discuss the history of the test, its disconnection from the language of Title VII, and the confusion it caused. I also will discuss how modern courts treat the test.

As we begin this conversation about McDonnell Douglas, I will also continue posting about the causation questions we have been exploring for the past few months.

Lexicon, McDonnell Douglas

Lexicon, McDonnell Douglas Test

The McDonnell Douglas test refers to a three-part burden-shifting framework that courts use in some discrimination cases. The Supreme Court created the test in 1973 in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In McDonnell Douglas, an African-American employee brought suit alleging discrimination under Title VII of the Civil Rights Act of 1964 when his employer failed to re-hire him as a mechanic.

Under the McDonnell Douglas test, the plaintiff bears the initial burden. The plaintiff must prove the following: “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802. In a footnote in the decision, the Court noted that these elements would change to fit the circumstances of individual cases.

After the plaintiff satisfies each of these four elements, the burden then shifts to the defendant to articulate some legitimate and non-discriminatory reason for its action. If the employer does this, the burden then shifts back to the plaintiff to prove that the reason provided by the defendant was pretextual or discriminatory.

In a later case, Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court clarified the McDonnell Douglas test. In Burdine, the Supreme Court lessened the defendant’s burden in the McDonnell Douglas test. Cases prior to the decision had held that the employer had both the burdens of production and persuasion on the second step of the McDonnell Douglas test. For example: The plaintiff needed to prove the four elements of the prima facie case, then the defendant needed to prove that it had a legitimate non-discriminatory motive, then ultimately, the plaintiff could prove that the reason was pretext. If the defendant could not carry the burden of persuasion that it had a legitimate non-discriminatory reason for the adverse employment action then the burden would not shift back to the plaintiff. The Supreme Court, however, said that the defendant did not have a burden of persuasion. The defendant in the McDonnell Douglas burden-shifting framework only carries the burden of production. In other words, it only needs to present evidence of its nondiscriminatory reason for its actions but does not need to prove the existence of that reason.

by Erin Alderson


Important Iowa Supreme Court decision

There is another interesting ruling from the Iowa Supreme Court. This one is essential reading for anyone interested in disparate impact law or in arguing for different legal standards under state and federal discrimination law. The opinion has so many different facets deserving much more attention than is possible in a blog post so the following provides only the highlights.

In Pippen v. State, 12-0913, 2014 WL 3537028 (Iowa July 18, 2014), plaintiffs brought a class action alleging that the state of Iowa unlawfully discriminates against African Americans in employment. The case was brought under Title VII and Iowa state law and alleged discrimination in merit-system positions across 37 departments of state government. After a trial, the court found in favor of the state.

In its opinion, the Iowa Supreme Court tries to grapple with the complicated intersection of disparate impact law and class actions post Dukes. The opinion contains a lengthy discussion of the historical development of federal disparate impact law.

The key discussion in the opinion focused on whether the state’s practices were incapable of separate analysis under Title VII’s disparate impact analysis. The plaintiffs’ evidence was largely aimed at employment practices generally, rather than isolated to a particular practice. The Court recognized several instances where plaintiffs could proceed on class wide allegations on a disparate impact theory without focusing on specific practices, including when employer record-keeping is so shoddy that the record-keeping makes separate analysis impossible or when decisions were made with unfettered discretion across departments. The Iowa Supreme Court held, based on the facts of the particular case, that the plaintiffs did not show under federal law that the available data made it difficult to analyze particular practices. However, the reasoning leading up to this holding offers many different avenues for future claimants to argue that the evidence is incapable of separate analysis.

It also continues to separate Iowa state law from Title VII law. The Court stated: “While Congress passed the Civil Rights Act of 1991 in response to Wards Cove, no similar amendment has been made to the Iowa Civil Rights Act. The fact that Congress enacted a legislative change in response to a binding majority opinion of the United States Supreme Court does not have persuasive force in the interpretation of the Iowa Civil Rights Act. We have not adopted the principles of Wards Cove in the construction of the Iowa Civil Rights Act and are not bound to do so. Congressional reaction to a specific case decided by the United States Supreme Court does not shed light on the meaning of state law when there has been no comparable narrow state court precedent to stimulate a legislative override.” Id. at 15. The Court found that the plaintiffs in this particular case had not argued for a different disparate impact analysis and so the Court declined to provide one.   However, the opinion leaves the door wide open for future plaintiffs to argue that Iowa disparate impact doctrine is significantly different than federal law.

Interestingly, the opinion also posits that based on questions during oral argument in Dukes, Justices Kennedy and Roberts might be interested in a negligence theory of discrimination, as discussed in Professor David Benjamin Oppenheimer’s article, Negligent Discrimination, 141 U. Pa. L. Rev. 899 (1993).

Hat tip: Alex Long

Causation, Price Waterhouse

Causation, Part 9 (Price Waterhouse)

Justice O’Connor’s concurrence in Price Waterhouse plays a crucial role in the development of causation doctrine in discrimination cases. In it, she emphatically declared that Title VII is a statutory tort. In the 2000s, Justices would build on this idea to dramatically change the trajectory of discrimination law and try to align discrimination law (at least facially) to tort law. This idea, that discrimination is a tort, would later play a significant role in how the Supreme Court interpreted causation under the ADEA and the Title VII retaliation provision.

Justice O’Connor’s use of the tort label is problematic in several respects. Justice O’Connor cited no authority for this statement. She engaged in no discussion about what it means for Title VII to be a tort or the relationship between common law torts and Title VII. Justice O’Connor described tort causation as requiring “but for” cause, without noting that the common law also provides other factual cause standards. Her description of tort law is narrow to the extent that she characterized the words “because of” to mean “but for” cause.

While Justice O’Connor believed that causation meant “but for” cause, she disaggregated this question from the question of which party was responsible for proving causation. Justice O’Connor viewed the case as requiring the Court to determine “what allocation of the burden of persuasion on the issue of causation best conforms with the intent of Congress and the purposes behind Title VII.” She also recognized that given the specific ways employment decisions are made, that requiring a plaintiff to prove that a protected trait was a definitive reason for an employment outcome would be “tantamount to declaring Title VII inapplicable to such decisions.”

In her concurrence, Justice O’Connor argued that the plaintiff should not get the benefit of the motivating factor test unless she had direct evidence of discrimination.  In a later case, the Supreme Court would reject this portion of her analysis.  While Justice O’Connor disagreed with the plurality on this direct evidence question, her concurrence generally agreed with the rest of the test enunciated by the plurality.  She agreed that the plaintiff could prevail on a discrimination claim by proving something less than “but for” cause.

However, she conceived the plurality’s test as ultimately getting to the question of “but for” cause through its shifting of burdens from plaintiff to defendant.  If the plaintiff showed a protected trait was a motivating factor in a decision, and the employer responded by showing that it would have made the same decision absent the protected trait, no liability existed because the protected trait was not a “but for” cause of the decision.  While Justice O’Connor believed that Title VII required a “but for” cause standard, she did not think the plaintiff should be entirely responsible for establishing the causal element.



Lexicon, Mixed Motive

By Tenechia Lockhart

Mixed motive discrimination refers to action taken by an employer against an employee where the action is motivated by some discriminatory, illegitimate reason as well as a legitimate business reason. Mixed motive discrimination was articulated by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

In Price Waterhouse the plaintiff argued that her promotion for partnership was postponed because of sex stereotyping. There was evidence that legitimate reasons also may have motivated the employer’s decision. The plurality held that when a plaintiff-employee demonstrated that a discriminatory reason, such as sex, acted as a motivating factor in an employment decision, the burden then shifts to the defendant-employer to demonstrate that it would have made the same decision even if it had not taken the discriminatory reason into account.

The plurality decision drew only four votes. Justice O’Connor’s concurrence potentially limited the plurality’s holding. She opined that the employee had to produce direct evidence that an illegitimate reason was a motivating factor for the employment action to be able to invoke a mixed-motive framework for her claim.

The 1991 Amendments to the Civil Rights Act codified the concept of mixed motive. The language of the statute reads as follows:

Except as otherwise provided in this subchapter, 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). In Price Waterhouse, the Court held that if the employer proved the same decision defense, then it would completely escape liability. However, when Congress amended Title VII, it changed the effect of the employer’s proof. If an employer proves it would have made the same decision absent the protected trait, it is entitled to a partial defense to damages. 42 U.S.C. § 2000e-5(g)(2)(B). Proof of the defense does not absolve the employer of all liability.

In Desert Palace, Inc. v. Costa, 539 US. 90 (2003), the Supreme Court addressed the question raised by Justice O’Connor’s concurrence about whether direct evidence is needed to proceed on a mixed motive theory under Title VII. It held that direct evidence is not needed for a plaintiff to prevail in a Title VII mixed motive case.

One note of caution about the mixed-motive theory. In both the ADEA and retaliation contexts, the Supreme Court has required the plaintiff to establish that a protected trait was a “but for” cause of an adverse action. Questions remain about whether the mixed motive idea can be used under other statutes.