Causation, Post 2 (The Causation Trilogy)

In the past five years, the Supreme Court has decided two major cases involving causation standards for federal discrimination statutes. While these cases resolved some causation issues, they leave many unanswered. What is the causation standard under the Family Medical Leave Act (FMLA)? Under section 1981? Under the Americans with Disabilities Act (ADA)? And what happens to causation under state discrimination laws?

Three Supreme Court cases and the 1991 amendments to Title VII are essential reading for these remaining issues. The three cases are Price Waterhouse v. Hopkins, Gross v. FBL Financial Services, Inc., and University of Texas Southwestern Medical Center v. Nassar.   This post provides an overview of the holding in each case. Later posts will explore and critique the arguments presented in each case in more detail.

In the case Price Waterhouse v. Hopkins, the Supreme Court held that plaintiffs proceeding on a Title VII discrimination claim need only prove a protected trait was a motivating factor in an employment decision. If the plaintiff did this, the employer could escape liability if it could show that it would have made the same decision absent the protected trait.

In 1991, Congress amended Title VII. While Congress affirmed the availability of the motivating factor standard of causation, it disagreed with the Supreme Court about the effect of the same decision defense. Congress codified an affirmative defense that would be a partial defense to damages for the employer, but not a complete defense to liability.

When Congress inserted the motivating factor and same decision defense language into Title VII, it did not amend the ADEA to include the same language. Given that the ADEA and Title VII share nearly identical language in their main provisions, Congress’ inaction in the ADEA raised several questions. Did Congress intend for the ADEA and Title VII to have different causal standards? Did Congress just forget to amend the ADEA? Did Congress intend for Price Waterhouse to govern ADEA causal questions?

In Gross, the Supreme Court considered the causal standard under the ADEA. The Court held that the ADEA required a showing of “but for” cause. In so holding, the Court rejected the idea that the ADEA should use the same causal standard as Title VII.

The Nassar case is the third case in the causation trilogy. In that case, the Court determined whether a plaintiff proceeding on a Title VII retaliation claim is required to establish “but for” cause. The Court held that a plaintiff bringing a Title VII retaliation claim is required to establish “but for” cause and is not able to take advantage of the “motivating factor” language available for Title VII discrimination claims. This means that a plaintiff alleging a discrimination claim under Title VII faces a lower causal burden than a plaintiff proceeding on a Title VII retaliation claim.

These three cases provide one lens through which to think about causal questions remaining under other statutes. Should these other statutes follow Price Waterhouse? Should they follow the 1991 amendments to Title VII? Should they follow Gross and Nassar? Or, are there differences in these statutes that require other answers?

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