Causation, Part 6 (Price Waterhouse)

The modern causation trilogy consists of three cases: Price Waterhouse, Griggs, and Nassar. This post begins an in-depth discussion of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). I strongly encourage anyone wanting to fully understand causation/discrimination issues to read the entire decision. Relying on later cases’ interpretations and re-interpretations of Price Waterhouse is problematic. Later descriptions of the case often miss and misstate important points.

In Price Waterhouse, the Supreme Court considered whether a plaintiff could prevail on a Title VII claim if she could show that legitimate and discriminatory reasons both played a role in the employer’s refusal to promote her. The Court framed the issue presented by the case as a causation question. But, at it heart, the case is about when we call certain conduct legal discrimination. In other words, the question posed by the case is whether it is discrimination if an employer takes an action for two potential reasons: one discriminatory and one not.

Why was it necessary for the Supreme Court to decide this case? In some ways, the oddities of McDonnell Douglas and its three-part burden-shifting framework lead to Price Waterhouse. McDonnell Douglas sets forth a legal framework that pits the employee’s proffered reason for an action against the employer’s claimed reason. The framework asks the factfinder to then decide which of these competing narratives is correct. The test fails to anticipate that both legitimate and discriminatory reasons might explain an employment decision.

Further, courts, litigants and scholars began to describe and categorize discrimination cases. They used the words “single motive” to describe cases where the plaintiff alleged discrimination as the only reason for an employment action. In contrast they used the term “mixed motive” to describe cases where both legitimate and discriminatory reasons might exist for the employment action. It is important to remember that these categories were not present in the original language of Title VII and even the current version of Title VII does not draw these distinctions. However, the way we described cases as being either “single motive” or “mixed motive” affected how courts and litigants viewed the underlying doctrine. If McDonnell Douglas provided the test for single-motive disparate treatment claims based on circumstantial evidence, what was the test for so called “mixed motive” claims?

In thinking about Price Waterhouse, it is important to consider several different questions. First, what does the statutory language say? Second, when should we label an action as discriminatory? Third, how do we translate the statutory language of Title VII and its policy into a workable doctrine?

Let’s turn first to Title VII’s primary operative language. It provides as follows:

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; or

(2) to limit, segregate, or classify his employees or applicants for employment 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 race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a).

One interesting point about current causation analysis is that it fails to consider how the second part of Title VII’s operative language might affect individual disparate treatment claims. Litigants, courts and scholars often assume that the first subsection of Title VII’s language applies to disparate treatment claims and the second subsection describes disparate impact cases, but there is no reason to assume this. In thinking about causation questions, it remains to be seen what impact the second subsection has or should have on doctrine.

If we are honest in reading subsection 1, it does not provide enough detail to resolve the question raised in Price Waterhouse simply through the use of statutory language. Thus, the language of the statute necessarily requires interpretation by courts.

Any claim that the language of Title VII absolutely requires a certain causal outcome should be regarded with skepticism. The courts are required to make choices. One goal of this series of blog posts is to try to better illuminate the choices courts are making. It is often difficult to see that the Supreme Court is making choices, because in recent cases it has claimed that the law demands a particular result. This claim has unnecessarily skewed the Court’s descriptions of the historical development of discrimination law.

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