Causation, Gross

Causation, Part 21 (Gross)

In Gross, the Supreme Court chose to apply a “but for” cause standard to the ADEA. In this post, I will discuss why the “but for” test does not work for some discrimination claims.

Before starting that discussion, I should explain how the Court’s use of textualism backed it into a corner on the causation issue. In tort law, the words “cause,” “causation,” or “because of” do not magically refer to one type of factual cause. Rather, a court facing a causal issue in a tort case would look at the facts and see what kind of causation inquiry makes sense. Based on the facts of the case the court would decide whether the standard “but for” cause analysis is appropriate or whether the case presents the kind of case where “but for” cause is problematic. Tort law does not require the same causal standard for all cases.

So, are employment discrimination claims like the kinds of cases where “but for” cause analysis works? Or are these cases more like the two raging fires cases in which “but for” cause does not work fairly?

There is no one right answer to this question. This is because employment discrimination cases present lots of different factual scenarios. In some cases, the use of “but for” is not a problem. Let’s take one example. Assume that a worker is fired. She claims that when her supervisor terminated her employment he said “old people do not work hard and I am going to fire all of them.” The supervisor denies this statement and claims he fired the worker because she violated the company attendance policy. The worker denies that she was absent. In this case, there are two competing narratives. Either the supervisor fired the worker because she was old or because she was absent. There are two choices that are mutually exclusive. The use of “but for” cause is fairly straightforward.

But, imagine a very different situation. A committee of three people is trying to decide who to let go in a reduction in force. They must choose between firing a 52-year old worker or a 35-year old worker. During a meeting, one member of the committee states that older people should be fired to make room for new talent. One person states that the 35 year old has slightly better performance reviews than the 52-year old. One person is silent during the meeting. The committee votes. The first two committee members vote to retain the 35-year old worker and the 52-year old worker is terminated.

In this scenario, we know that age was inappropriately interjected into the employment decision, but it is difficult to determine whether it was the “but for” cause of the decision. From this evidence, one might credibly argue that one committee member based her decision on age, another based on performance reviews, and another on an unknown reason. But, we do not necessarily know what would happen if we took age out of the mix. Would the first committee member still vote to terminate the older worker based on the performance reviews? In hindsight, it is nearly impossible to tell. And, this makes it hard for a plaintiff to establish “but for” cause.

One important note: In the hypothetical described in the prior paragraph, the case should go to the jury on the causation question. Drawing all inferences in favor of the plaintiff, the plaintiff has sufficient evidence to convince a reasonable juror that age was the “but for” cause of the decision.

McDonnell Douglas, Uncategorized

Important opinion from Hawaii Supreme Court

The Supreme Court of Hawaii has issued an important opinion that offers a new way to think about the McDonnell Douglas test. Adams v. CDM Media USA, Inc., 2015 WL 769745, No. SCWC-12-00000741 (Hawaii Feb. 24, 2015).

In Adams, the plaintiff alleged she was subjected to age discrimination when a company refused to hire her for a telephone sales position. The Hawaii Supreme Court found that the plaintiff established a prima facie case under McDonnell Douglas. The question in the case was whether the defendant met its burden in step two of that test, to articulate a legitimate, non-discriminatory reason for its action.

In support of its motion for summary judgment, the employer proffered several reasons for not hiring the plaintiff. The employer asserted the plaintiff lacked sales experience in the last five years, her prior sales experience was in other fields and involved face to face communication, she had little or no sales experience with corporate executives at Fortune 1,000 companies, and the decisionmaker was told the plaintiff disliked tedious work.

The Hawaii Supreme Court held that the employer failed to meet its burden of production under the second step of the McDonnell Douglas test. The Court emphasized that the second step in the test requires the employer’s decision to be “legitimate.” The Court interpreted the word “legitimate” through the lens of Hawaii discrimination law to require that the refusal to hire an individual must relate to the ability of the individual to perform the work in question.

The Court held that summary judgment in the employer’s favor was inappropriate because the reasons provided by the employer either were properly contested by the plaintiff, were based or inadmissible hearsay or did not relate to her ability to do the job. Importantly, the Court held that the employer could not use the lack of sales experience in the last five years as a legitimate reason if the plaintiff could perform the sales job adequately without recent experience. In this case, the employer admitted that the decisionmaker did not rely on the published criteria for the job in his decision to not hire the plaintiff, and the Court expressed concern that this “recent job experience” criteria was only being applied to the plaintiff and that it was not a legitimate reason to disqualify a person for the job in question.

This case represents an important new way of looking at the second step of the McDonnell Douglas test and shows the further separation of state discrimination law from federal law. Also, the majority and dissenting opinions illustrate how confusing McDonnell Douglas still is, even though the test has been mulled over by courts for more than 40 years.


Employment Discrimination School, State law

Employment Discrimination School, Part 2 (Overview, State Law)

Future blog posts will discuss federal discrimination law, but it is always important to remember that state law is at play. In some instances, a state’s anti-discrimination law will mimic the federal discrimination in important respects.   This post covers some differences that often exist between state and federal law.

In some cases, state statutes provide greater protection than their federal counterparts. For example, the term “employer” is defined under some federal statutes as covering only those employers with a certain minimum number of employees. Employees who work for companies with fewer than fifteen employees do not fall within the employment discrimination protections of Title VII or the ADA, and a private employer must have at least fifty employees to fall within the reach of the FMLA. As a result, individuals who work for smaller employers often must rely on state statutes for discrimination protection.

Some state statutes provide protections for the same classes of individuals as the federal statutes, but define the protections differently. For example, while the ADEA offers age discrimination protection only for those 40 and older, some states protect employees who are younger than 40 from age discrimination.

In other instances, state statutes protect different categories of individuals from discrimination. For example, some states protect victims of domestic violence from discrimination, others prohibit discrimination because a person has a GED, and others protect workers from discrimination based on sexual orientation or gender identity.

Federal and state statutes often provide different remedies. For example, a plaintiff proceeding on an ADEA discrimination claim cannot recover punitive damages or emotional distress damages; however, some state statutes allow age discrimination plaintiffs to recover both types of damages. Under Title VII, the amount of punitive and emotional distress damages that a plaintiff may obtain is limited by statutory caps. Some state discrimination regimes do not provide a statutory cap for such damages or have higher statutory caps. On the opposite end of the spectrum, some state discrimination statutes do not allow recovery of punitive damages at all, while others cap punitive damages at lower points than federal legislation. While some of the federal statutes do not allow lawsuits to proceed against individual supervisors, some state statutes provide for individual liability.

While most states’ discrimination statutes are construed to be in line with federal law, some are not. As federal discrimination law has differentiated the ADEA from Title VII, many state laws can no longer mimic federal law. This is because states often have unitary statutes that prohibit discrimination against all protected classes in one statute. This is in contrast to federal law, which prohibits age discrimination in a separate statute (the ADEA) from sex and race discrimination (Title VII). Federal law also provides a separate statute for disability discrimination (the ADA).

At-will Employment, Employment Discrimination School

Employment Discrimination School, Part 1 (Overview, At-will Employment)

This begins a series of posts that will guide you through basic concepts in employment discrimination law. The intent of these posts is to serve as a school outside the physical walls of the law school. By starting with this post and continuing to read posts until this project is finished, you will understand the most important concepts in employment discrimination law.

These posts are aimed at law students studying the field for the first time, at practicing lawyers who need refreshed knowledge, for practicing lawyers entering the field, for human resources professionals, or anyone else wanting to learn more about discrimination.

These posts will explore the four main federal statutes that protect workers against employment discrimination: Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and 42 U.S.C. § 1981 (§ 1981).

Title VII provides protections against employment discrimination based on a person’s race, color, national origin, religion, or sex. As is obvious by their titles, the ADEA prohibits age discrimination in employment, and the ADA prohibits disability discrimination, with Title I of the ADA dedicated to the employment context. Section 1981 protects against race discrimination in employment and other contexts.

Before discussing these statutes in detail, it is important to ground them in the larger context of employment law in the United States.  In the United States, the default rule governing employment is called at-will employment. But see Mont. Code Ann. § 39-2-904(1) (statute abrogating the employment at-will doctrine in certain termination cases).

Under at-will employment, absent a contract, a statute or other law to the contrary, an employer may fire an employee for any reason. That reason can be a good reason or a bad reason. In fact, at-will employment does not require the employer to provide any reason for terminating an employee.

Likewise, an employer can hire an employee for any reason or no reason. The employer also can change the terms and conditions of employment for any reason or no reason.

To provide an example of at-will employment, consider the following. A supervisor calls three employees into a room. He tells each employee to roll a dice. Any employee whose dice lands on six will be terminated. Firing employees in this way is not smart and is not good business practice, but it is legal under at-will employment.

There are many exceptions to the at-will employment rule. One set of those exceptions is the federal employment discrimination statutes, which we will discuss in great detail. States also have statutes that protect employees against discrimination.

Some states, either through statutes or the common law, have carved out public policy-based exceptions to at-will employment. These exceptions vary widely by state, but exceptions have been recognized where an employee refuses to break the law, where an employee is performing a public obligation (such as performing jury duty), or when the employee is exercising a legal right, such as filing a worker’s compensation claim or protesting unsafe working conditions. Contracts also provide an exception to at-will employment.

The concept of at-will employment is important because, in most states, it is the default rule governing hiring, terminations, and the terms and conditions of employment when no other law or contract applies to the employment relationship. As we study discrimination law, you will see that the courts are some times balancing anti-discrimination mandates with the power given to employers under at-will employment.

Outside the United States, many countries explicitly provide employees protection against unjust terminations or require an employer to pay an employee when an employee is fired absent cause. Some countries recognize an employee right of privacy or right of personality. See Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 Chi-Kent L. Rev. 221, 261 (1996).

Causation, Gross

Causation, Part 20 (Gross)

In Gross, the Supreme Court made important choices about causation. But, it did so without explicitly recognizing that any choices were made. This post explains the critical difference between “but for” cause and substantial factor cause. In the next post, I will explain what the choice between the two means for the ADEA.

Before starting this discussion, it is important to remember that when lawyers discuss causation in a general sense, they are usually thinking about causation as an element of a negligence claim. Since the courts largely think of disparate treatment claims as requiring some form of intent, a negligence paradigm provides an uneasy fit for discrimination law. In intentional torts, causation plays a less prominent role than it does in negligence cases. The Restatement (Second) of Torts notes that while causation plays a role in intentional torts, it works differently in that context. (§ 430, note e).

Causation is a general concept that links a defendant’s wrongful conduct to the harm caused to the plaintiff. An example is helpful. If a man walks outside his house and starts indiscriminately throwing large rocks down the street, he is acting in a careless way. However, his actions will not result in legal liability for negligence unless his careless rock throwing can be connected to harm to a person or property. For example, if one of the rocks hits the neighbor’s car, liability will result. In this case, there is the proper connection between the wrongful conduct and the harm to the neighbor. This connection is what the law calls causation.

Tort law often breaks causation into two components: factual cause and legal cause (also called proximate cause). The terminology sometimes gets confusing because it is not consistently used to mean the same thing. In this post, we are talking about factual cause. If something is a factual cause it means that it affected the outcome in some way.

Let’s go back to the rock-throwing example. Assume a man is throwing rocks out onto the street. A driver drives a car down the same street while texting. The driver becomes distracted by the texts and hits the neighbor’s mailbox. The driver does not see the rocks. In this scenario, the rock thrower does not face any liability for the damage to the neighbor’s mailbox. Even though he was throwing rocks into the street, it was the driver’s carelessness, and not the rock throwing, that caused the damaged mailbox.

In negligence cases, two standards can be used to determine factual cause. The most common standard is the “but for” cause standard. A person’s conduct is not the “but for” cause of an outcome if the same outcome would have happened absent that conduct. The Restatement (Second) of Torts provides an example of a company that does not put required lifeboats on a ship. A sailor goes overboard during the voyage during a storm. The storm was so severe that no lifeboats could have been launched to save the sailor, and the sailor is lost at sea. Even though the failure to provide the lifeboats was careless, it was not the “but for” cause of the harm to the sailor.

Negligence law recognizes that “but for” cause does not make sense in some circumstances. In these kinds of cases, two forces are operating at the same time and either alone could cause the harm. The example commonly given to illustrate this concept involves two separate fires. Imagine that a homeowner is careless in burning leaves in his yard. The fire gets out of control and starts to burn a wooded area nearby. On the opposite side of the wooded area, a camper is careless about a campfire. The campfire gets out of control and starts to burn the wooded area. In the middle of the wooded area is a house. Both fires converge on the house and destroy it.

In this example, if we use “but for” cause, neither the leaf burner nor the camper would be liable for the damage to the burned home. If the homeowner sues the person burning leaves, he will argue he was not the “but for” cause of the damage. The damage still would have occurred even without his carelessness. The campfire would have burned the house down. If the homeowner sues the camper, she will argue that she cannot be held liable because she is not the “but for” cause of the damage. The damage still would have occurred without her carelessness. The fire started by the burning leaves would have caused the damage.

In these cases, it is not fair to let both careless fire starters off the hook. However, this is the answer we would get if we applied “but for” cause. In such situations, the law allows the defendant to be held liable if his actions were a substantial factor in bringing about the harm.

In Gross, the Supreme Court chose to apply a “but for” cause standard to the ADEA. However, it failed to explain why “but for” cause was the right standard for discrimination claims.

Causation, Gross

Causation, Part 19 (Gross)

The analysis in Gross is unsatisfying because it relies heavily on a guess about congressional intent. But another part of the Court’s analysis is even more problematic. The causation analysis does not hold together. This post breaks down the causation analysis into its component parts to make it easier to see the flawed reasoning.

The causation analysis has four parts. First, the Court provides the definition of “because” from various dictionaries. This is fine, but it tells us very little about causation in a legal sense. According to Gross, the definition of “because of” is “by reason of” or “on account of.” There can be many reasons for a particular outcome, and these definitions tell us nothing about how to navigate multiple causes. Non-legal dictionary definitions tell us nothing about legal concepts such as factual cause and legal cause. They also do not tell us anything about who has the burden of proof in litigation.

The litany of dictionary definitions is superfluous. It tells us nothing about how causation analysis should proceed in litigation. These definitions provide no guidance about how to navigate important causation problems. What should the causation standard be? Who should be required to prove this standard? How do we handle multiple causes? How do we handle situations with multiple decisionmakers? Should the discrimination statutes borrow causation principles from tort law? If we borrow causation principles from tort law how do these principles fit with other provisions of the discrimination statutes?

In the second step, the Court makes a huge logical leap in one sentence. The Court noted: “Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” The key words in this sentence are “the reason.” This sentence is misleading because it makes it sound as if the discrimination statutes require sole causation. It also makes it seem as if employment decisions can have only one reason.

From here, the Court simply declares that ADEA disparate treatment claims require proof of “but for” cause. To support this decision, the Court cited two cases outside the discrimination context and a torts treatise. Importantly, the Court did not look to Price Waterhouse, the Court’s last discussion about causation in the discrimination context.

Any first year law student can easily see that this sentence hides an important choice. In tort law, courts often use “but for” cause. However, courts also recognize that “but for” cause does not work in certain instances. In these instances, tort law provides another option. The plaintiff can prevail by establishing causation through a substantial factor analysis. I will write more about the differences between “but for” cause and substantial factor cause in a later post.

The key point for this post is that tort law recognizes at least two choices for causation standards. In Gross, the Supreme Court picked one of these standards without any explicit statement that it was making this choice. By citing to two cases and a treatise, the Supreme Court made it appear as if it had only one choice, “but for” cause. The Court’s argument reads as if the law commands only one choice.

In reality, the Court had many choices. “But for” cause was one choice. Substantial factor cause was another. The two-part test in Price Waterhouse provided another option. The Court hides all of this potential ambiguity in its cursory analysis. It also looked to tort law to establish causation under the ADEA. This “tortification” of discrimination law is one of the most important recent moves in discrimination jurisprudence.

One odd part of the textual analysis deserves further attention. If Congress intended to use “but for” cause it could have actually used those words. Tort law does not typically use the words “because of” to mean a specific kind of causation. Rather, tort law tends to use more specific words, such as factual cause, legal cause, and proximate cause, to explain different parts of the causal inquiry. The words “because of” do not inherently signal any particular meaning in tort law.

In the final step, the Court reasons that the plaintiff has the burden of establishing causation. This analysis also hides a choice. As shown in Price Waterhouse, plaintiffs do not always have the burden of proving causation.