1991 Amendments, Causation, Price Waterhouse

Causation, Part 13 (1991 amendments to Title VII)

In 1991, Congress responded to several Supreme Court decisions by amending Title VII. Congress inserted language in Title VII making it clear that a plaintiff may prevail under Title VII if she establishes a protected trait was a “motivating factor” for a decision. 42 U.S.C. § 2000e-2(m) (2006). This portion of the 1991 amendment affirms Price Waterhouse. Congress affirmed the decision by explicitly inserting a portion of its holding into the statute.

The 1991 amendments also codified the two-part structure described in Price Waterhouse. Congress inserted an affirmative defense into the statute. Congress’ disagreement with Price Waterhouse related to the effect of the affirmative defense. In Price Waterhouse, the Court held that when the employer successfully established the affirmative defense, it would not face liability. Congress disagreed that the proof of the affirmative defense should erase all employer liability. Instead, Congress provided that the employer may establish a limited defense as to damages only if it shows it would have made the same decision absent a protected trait. 42 U.S.C. § 2000e-2(m) & § 2000e-5(g)(2)(B).

In Gross, the Supreme Court will rely on an inappropriate characterization of the relationship between Price Waterhouse and the 1991 amendments to justify its causation analysis under the ADEA. Through the 1991 amendments, Congress largely reaffirmed Price Waterhouse. It only disagreed with the decision to the extent that it thought the affirmative defense was too employer-friendly.

When Congress amended Title VII in 1991, it did not add similar language to the ADEA or the ADA. Questions remained about what the lack of amendment meant, especially in the ADEA context. Should the courts interpret the ADEA to be consistent with the newly amended Title VII, should the courts interpret the ADEA through the lens of Price Waterhouse, or did the ADEA call for a different analysis?

Circumstantial Evidence, Direct Evidence, Lexicon, McDonnell Douglas

Lexicon, Direct Evidence

By Tenechia Lockhart

In employment discrimination cases, a plaintiff may produce direct or circumstantial evidence of discrimination to support her claim. Although the Federal Rules of Evidence do not make a distinction between these two types of evidence, the distinction between direct and circumstantial evidence is important in some discrimination cases. The concept of direct evidence of discrimination emerged after Justice O’Connor’s concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Justice O’Connor opined that in order for a plaintiff to prevail in a mixed-motive discrimination case she must produce direct evidence.

But what is direct evidence of discrimination? The federal courts have struggled with both defining and identifying direct evidence of discrimination. So much so that the Seventh Circuit has stated that “[c]ourts have noted the difficulty of defining direct evidence for discrimination claims. . . [and] [o]ur own statements on what constitutes direct evidence are not in complete harmony.” Sanghvi v. St. Catherine’s Hosp., Inc., 258 F.3d 570, 574 (7th Cir. 2001) (noting the lack of consensus within the Seventh Circuit, alone.) The Eleventh Circuit has described direct evidence of discrimination as “evidence, that, if believed, proves the existence of a fact in issue without inference or presumption . . . [and] is composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999). Whereas the First Circuit defined direct evidence of discrimination as evidence “which, in and of itself, shows a discriminatory animus.” Jackson v. Harvard University, 900 F.2d 464, 464 (1st Cir. 1990). However, direct evidence of discrimination is not “stray remarks in the workplace . . . statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself.” Price Waterhouse, 490 U.S. at 277 (O’Connor, J. concurring).

Take these facts for example. A male supervisor, John tells an employee, Alice, that she should not apply for a promotion because she recently had a child and would never be qualified for the time-consuming position. Ignoring John’s comment, Alice applies for the position and interviews before a three-member panel. John is not on the panel. Alice is not hired for the position and sues. Is John’s comment direct evidence of discrimination? It is unclear how a court would answer this question, although courts are generally reluctant to determine that a plaintiff has direct evidence of discrimination.

The choice of whether this is direct or circumstantial evidence is important, at least in single-motive cases. At summary judgment, a court will choose a framework through which to analyze the case. If a plaintiff has direct evidence, the court will simply ask whether a material question of fact exists about whether the employer took an action because of a protected trait. In most circuits, if a plaintiff alleges a single-motive case and has circumstantial evidence, the court will funnel the facts of her case through a McDonnell-Douglas analysis. The Seventh Circuit has created a test that allows a plaintiff to proceed through the direct framework if she has direct evidence or a convincing mosaic of circumstantial evidence.

The direct/circumstantial dichotomy is less important in mixed-motive cases. The Supreme Court held in Desert Palace v. Costa that courts should analyze motivating factor cases through the same test, whether the plaintiff had direct or circumstantial evidence. The Court’s holding in Desert Palace raises substantial questions about why the direct/circumstantial divide continues to exist in so-called single-motive cases.

Causation, Price Waterhouse

Causation, Part 12 (Price Waterhouse)

As demonstrated by the prior posts, Price Waterhouse is a complicated decision. A majority of the Court agreed that courts should evaluate motivating factor cases through a two-part framework.

The plaintiff would first be required to demonstrate that a protected trait played a motivating factor in an employment decision. After establishing this, the employer would then have the opportunity to establish that it would have made the same decision absent consideration of the protected trait. If the employer was successful in establishing this affirmative defense, the employer would prevail. In other words, the suit would end by declaring the employer had not engaged in discrimination. If the plaintiff met her burden and the employer failed to establish its affirmative defense, the plaintiff would prevail.

Nonetheless, it is important to keep in mind the most important takeaway from the case. A majority of the Supreme Court interpreted the “because of” language in Title VII’s primary operative provision as allowing a plaintiff to proceed without showing “but for” cause. The plaintiff was only responsible for establishing that a protected trait was a motivating factor in an employment decision. A majority of the Justices also agreed that a tort, “but for” cause analysis was not required under Title VII.

It is important to separate this question from the separate question of what the employer’s showing of the affirmative defense accomplishes. In Price Waterhouse, the plurality and concurring opinions agreed that if the employer met its burden on the affirmative defense, the employer would escape Title VII liability. It is this second part of Price Waterhouse that Congress responds to in the 1991 amendments to Title VII.

It is also important when examining Price Waterhouse’s causation analysis to not become distracted by many of the other disagreements that were happening in the background. Price Waterhouse contained many threads: about whether Title VII is a tort, about the intersection of motivating factor analysis with McDonnell Douglas, about whether sex stereotyping is a separate claim, about whether direct evidence is required to proceed under the motivating factor analysis, and about whether it is proper to ground the Title VII causation analysis in tort law or First Amendment employment law. The disagreement on all of these issues is distracting, but it does not eliminate the fact that a majority of the Justices in Price Waterhouse agreed that Title VII does not require a plaintiff to establish “but for” cause.

Causation, Price Waterhouse

Causation, Part 11 (Price Waterhouse)

Three Justices (Justice Kennedy, Chief Justice Rehnquist, and Justice Scalia) dissented in Price Waterhouse. The dissent argued that Title VII’s “because of” language meant the plaintiff was required to establish “but for” cause.

The dissenting opinion uses incorrect legal reasoning that will prevail in later cases like Gross and Nassar. The dissent noted that the phrase “because of” conveys the idea that the protected trait or discriminatory motive made a difference to the outcome. It then equates this idea with “but for” cause. However, the law recognizes other ways to show that something played a role in an outcome outside of the “but for” construct. For example, tort law has long recognized that causation can be established through a substantial factor analysis. The dissent ignored this other, long-accepted way of establishing causation.

The dissent also argued that the Court should not adopt a motivating factor standard. Instead, courts should use the McDonnell Douglas test to evaluate claims. The dissent correctly noted the confusion inherent in multiple proof structures. However, it failed to explain how McDonnell Douglas would operate in instances where a factfinder believed that both a protected trait and a legitimate reason both caused an employment decision.

Nonetheless, the dissent agreed that the two-part test enunciated by the plurality and concurring opinions is ultimately consistent with the “but for” standard. The dissent then discussed the burden-shifting element of the motivating factor analysis and argued that the plaintiff should carry the burden of establishing causation.

Worth noting is the dissent’s correct belief that “but for” does not equate with sole causation. The dissent noted that “sex is a cause for the employment decision, whenever, either by itself or in combination with other factors, it made a difference to the decision.”


Importantly, in characterizing the test described by the plurality and concurring opinions, the dissent indicated that the shift in the burden of persuasion would only occur when the plaintiff established her burden with direct evidence that an unlawful motive played a substantial factor in the decision. Later, in Desert Palace, the Court would hold that direct evidence is not required to proceed on a motivating factor analysis.

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.