Causation, Part 27 (Nassar)

In 2013, the Supreme Court issued its opinion in University of Texas Southwestern Medical Center v. Nassar. That case raised the question of whether Title VII’s retaliation provision required the plaintiff to establish “but for” cause. The Court held that it did. This posts sets up the legal issue decided in Nassar.

Title VII has multiple provisions. One of those provisions, codified at 42 U.S.C. § 2000e-2, provides as follows:

(a) Employer practices

It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; . . .

This provision prohibits an employer from discriminating against an employee because of a protected trait. Later, the statute prohibits retaliation. The anti-retaliation provision is codified at 42 U.S.C. § 2000e-3. It provides as follows:

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Notably, the discrimination provision (§ 2000e-2) uses the word “because” and the retaliation provision (§ 2000e-3) uses that same language.

Since Nassar followed on the heels of Gross, the defendant made the argument that the 1991 amendments to Title VII did not explicitly amend § 2000e-3. Just like with Gross, this argument asked the Court to give a certain meaning to the 1991 amendments. Congress made a choice. For discrimination cases, Congress adopted a motivating factor test and required the defendant to carry some of the causation burden to escape damages. Without any explicit notice that it was doing so, so this argument goes, Congress intended to apply a different causation standard (“but for”) to Title VII retaliation claims and place the entire burden of proof on the plaintiff.

This post sets up the prevailing argument in Nassar. In the next post, I will explain why this history is problematic.

Causation, Part 26

Gross introduced many problems and questions into discrimination law. Even though Title VII and the ADEA use the exact same “because of” language, this language now means one thing for Title VII discrimination claims and has a different meaning for ADEA claims. A Title VII discrimination plaintiff can use the “motivating factor” language to define “because of,” while the ADEA plaintiff must establish “but for” cause.

In cases involving age and an additional protected trait, it is unclear how courts should proceed. Say, for example, that an older woman alleges that she was treated differently both because of her age and her sex. It is unclear what causal standard a court should apply. Should the court apply a motivating factor standard for the sex claim, but a higher “but for” standard for the age claim? If so, how does this practically work?

Gross raises many issues for state law. Many state discrimination statutes prohibit discrimination for all protected classes within one statute. This is unlike the federal statutes, which have separate statutes for age and disability discrimination. Many state discrimination statutes also are construed in line with federal law. However, Gross introduces a new wrinkle. To continue to read these state statutes in line with federal law, the courts will have to construe the state statute to have different meanings, even though the same provision governs both age discrimination and other forms of discrimination. Since Gross relies on a twisted interpretation of the relationship between Title VII, the ADEA, Price Waterhouse, and the 1991 amendments to Title VII, it also is unclear whether Gross should apply to state statutes that do not share that same history.

Finally, Gross raises the causation question for every federal discrimination or related statute. Thus, litigants are now asking whether the Family Medical Leave Act and the Americans with Disabilities Act require “but for” cause. After Gross, litigants asked the same question for Title VII retaliation claims (more on Nassar later).

Employment Discrimination School, Part 6 (Section 1981)

One of the most overlooked federal discrimination statutes is Section 1981. It prohibits race discrimination and provides as follows:

(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens[.]

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

42 U.S.C. § 1981.

In many instances, courts will apply reasoning from Title VII cases to Section 1981 cases, but there are key differences between the statutes that are worth noting. Section 1981 does not have a statutory cap on remedies, it does not require a plaintiff to exhaust administrative remedies, it has a different statute of limitations, and provides a cause of action for individuals (such as independent contractors) who may not be covered by Title VII.

Employment Discrimination School, Part 5 (ADA)

The Americans with Disabilities Act, also called the ADA, was not enacted until 1990. It prohibits discrimination against a qualified individual on the basis of disability.

The ADA’s primary operative provisions are structured very differently than those of Title VII and the ADA. The ADA has a general anti-discrimination provision, 42 U.S.C. § 12112(a), which provides as follow.

(a) General rule

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112. This section is then followed by 42 U.S.C. § 12112(b), which is a seven-part provision that provides further descriptions of and definitions for the prohibited acts. Importantly, the ADA also requires accommodation of disability in certain circumstances.

When interpreting the discrimination provisions of the ADA, courts often use the proof structures developed under Title VII. However, given the courts’ willingness to read the statutory provisions of Title VII and the ADEA as requiring separate analytical frameworks, it is always worth exploring whether the ADA requires different treatment from the other discrimination statutes.

Causation, Part 25

In Part III of Gross, Justice Thomas finally admits what the real issue is. He admits: “In any event, it is far from clear that the Court would have the same approach [the approach used in Price Waterhouse] were it to consider the question today in the first instance.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178-79 (2009). A majority of the Court in Gross disagreed with a majority of the Court in Price Waterhouse.

Here is where the real reasoning lies. The Court preferred one causation standard over another, and it preferred the standard that made it easier for employers to win cases and made it harder for workers to win them. The Court did not alter ADEA causation because of some special connection between the ADEA and tort law. Tort law did not command the use of a “but for” cause standard. Nonetheless, because the Court had to justify its move away from Price Waterhouse, discrimination law is now left with a bigger dilemma than the one posed by causation. In future posts, I will describe the increasing use of tort law in discrimination cases, a move that was greatly enhanced by Gross.

Causation, Part 24

Prior posts catalogued the Court’s faulty reasoning in Gross. The Court relied on a contorted history of the relationship between Title VII, Price Waterhouse, the ADEA, and the 1991 amendments to Title VII. The Court improperly defaulted to tort law to define causation. It then oversimplified the tort common law by failing to recognize that tort law allows for alternate ways to prove causation and allows for the burden of proof on causation to shift to defendants.

In his dissent in Gross, Justice Breyer discussed an additional problem. Tort cause largely developed in the context of physical events. Indeed, the quintessential negligence example is that of a car accident. Causation analysis that works for car accidents probably does not work well in cases where cause might be a mental state. As Justice Breyer explained:

It is one thing to require a typical tort plaintiff to show “but-for” causation. In that context, reasonably objective scientific or commonsense theories of physical causation make the concept of “but-for” causation comparatively easy to understand and relatively easy to apply. But it is an entirely different matter to determine a “but-for” relation when we consider, not physical forces, but the mind-related characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more often we ascribe motives, after an event, to an individual in light of the individual’s thoughts and other circumstances present at the time of decision. In a case where we characterize an employer’s actions as having been taken out of multiple motives, say, both because the employee was old and because he wore loud clothing, to apply “but-for” causation is to engage in a hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different. The answer to this hypothetical inquiry will often be far from obvious, and, since the employee likely knows less than does the employer about what the employer was thinking at the time, the employer will often be in a stronger position than the employee to provide the answer.

All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer’s decision. . . .

But the law need not automatically assess liability in these circumstances. In Price Waterhouse, the plurality recognized an affirmative defense where the defendant could show that the employee would have been dismissed regardless. The law permits the employer this defense, not because the forbidden motive, age, had no role in the actual decision, but because the employer can show that he would have dismissed the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the showing of a violation, precisely because the defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation.

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 190-92 (2009).

Employment Discrimination School, Part 4 (ADEA)

In 1967, Congress enacted the Age Discrimination in Employment Act, also called the ADEA. In its current iteration, the ADEA provides:

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3)  to reduce the wage rate of any employee in order to comply with this chapter.

29 U.S.C. § 623(a). The ADEA also contains some very important language of limitation: “It shall not be unlawful for an employer, employment agency, or labor organization(1) to take any action otherwise prohibited under subsections (a) . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). Courts refer to this latter provision as the “reasonable factor other than age” (RFOA) provision.

Enacted just three years after Title VII, the ADEA’s first two operative provisions are very similar to Title VII’s main provisions. Indeed, throughout the first decades of these statutes’ enforcement, the courts tended to read the two statutes in a similar way. If a court developed a proof structure for Title VII, courts would also use that same proof structure for ADEA claims. But, in the last two decades, the Supreme Court has interpreted the ADEA discrimination provisions to require different proof structures than those used under Title VII.  It is no longer safe to assume that a concept that applies in the Title VII context also applies to the ADEA.