Causation, Part 7 (Price Waterhouse)

In the last post, I pointed out the ambiguity in Title VII’s main provision. This post explores that ambiguity further and continues our discussion of Price Waterhouse. In ruling on Price Waterhouse, the Justices issued a plurality opinion, joined by four Justices. Justices O’Connor and White filed separate opinions concurring in the judgment. Three justices (including two on the current court, Justices Kennedy and Scalia) filed a dissenting opinion. Importantly, even though the Court did not issue a majority opinion, six of the Justices agreed to the core points of the plurality opinion.

The Court issued Price Waterhouse at a time when textualism was gaining ground as a statutory construction methodology, but before textualism became as robust as it is in modern opinions. As we proceed through the causation trilogy (Price Waterhouse, Gross, and Nassar), notice the vastly different approaches to statutory construction. Each case is trying to determine the meaning of Title VII. When the plurality addressed the question in Price Waterhouse, it began with the purpose of causation and its relationship to Title VII. The plurality wrote: “The specification of the standard of causation under Title VII is a decision about the kind of conduct that violates that statute.” 490 U.S. 228, 237 (1989). This is very different from later cases, which start with the words “because of” and try to use the dictionary definition of these words as the primary source of meaning for Title VII’s text in conjunction with an analysis of how ambiguities in Title VII’s amendments affected causation.

The plurality opinion also undertook a textual analysis. The plurality noted that Congress specifically rejected a sole causation standard for Title VII. With the sole causation standard off the table, the Court faced several choices. What should the causal standard under Title VII be and who should have to prove the causal standard? In reaching its conclusion, the Court relied heavily on the underlying purpose of Title VII. Reading Title VII’s primary operative provision in its entirety, the Court noted: “We take these words to mean that gender must be irrelevant to employment decisions.” Id. at 240.

Focusing specifically on the statutory words “because of,” the plurality emphatically stated that to “construe the words ‘because of’ as colloquial shorthand for ‘but-for causation,’ . . . is to misunderstand them.” Id. The plurality recognized an inherent problem with “but for” cause. In essence, “but for” cause requires a strange, hypothetical construct. After an event has taken place, the judicial decisionmaker revisits the event and asks whether if a particular factor was absent the event would happen in the same way. If so, the factor was not a “but for” cause of the outcome.

The plurality recognized that “but for” cause fails in cases that are causally overdetermined. These are cases in which two factors are present, but either one individually could have caused in the outcome. To apply the hypothetical construct of “but for” cause in such instances would mean that neither factor was causally related to the outcome.

The plurality also recognized how multi-person decisionmaking would make it difficult for a plaintiff to establish “but for” cause. The decisionmaking process in Price Waterhouse involved at least 32 people, who each submitted an opinion about whether Ms. Hopkins should be promoted to partner. Thirteen partners supported her bid for partnership. Three partners recommended that her candidacy be placed on hold. Eight indicated they did not have an informed opinion about Ms. Hopkins’ candidacy, and eight recommended that she be denied partnership. At the end of this internal process, Ms. Hopkins’ bid for partner was held in abeyance and she was told she could be reconsidered the following year. The following year, the company refused to reconsider her for partner.

The plurality recognized that some partners raised non-discriminatory concerns about Ms. Hopkins’ performance, while other comments appeared to be based on her sex. Given the multi-layered decisionmaking, it would be impossible for the plaintiff to show how each comment and each partner’s motivations affected the eventual outcome. The Court indicated that the employee was not required to tease out how all of the comments related to the employment decision affected the outcome. Rather, she established the required causal connection by showing the employer relied on sex-based considerations when making its decision.

The plurality continued by discussing the inherent tension within employment law. While Title VII prohibits discrimination based on protected traits, the employer maintains the ability to make employment decisions on other lawful grounds. I will turn to this portion of the opinion in the next post.

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