Justice O’Connor’s concurrence in Price Waterhouse plays a crucial role in the development of causation doctrine in discrimination cases. In it, she emphatically declared that Title VII is a statutory tort. In the 2000s, Justices would build on this idea to dramatically change the trajectory of discrimination law and try to align discrimination law (at least facially) to tort law. This idea, that discrimination is a tort, would later play a significant role in how the Supreme Court interpreted causation under the ADEA and the Title VII retaliation provision.
Justice O’Connor’s use of the tort label is problematic in several respects. Justice O’Connor cited no authority for this statement. She engaged in no discussion about what it means for Title VII to be a tort or the relationship between common law torts and Title VII. Justice O’Connor described tort causation as requiring “but for” cause, without noting that the common law also provides other factual cause standards. Her description of tort law is narrow to the extent that she characterized the words “because of” to mean “but for” cause.
While Justice O’Connor believed that causation meant “but for” cause, she disaggregated this question from the question of which party was responsible for proving causation. Justice O’Connor viewed the case as requiring the Court to determine “what allocation of the burden of persuasion on the issue of causation best conforms with the intent of Congress and the purposes behind Title VII.” She also recognized that given the specific ways employment decisions are made, that requiring a plaintiff to prove that a protected trait was a definitive reason for an employment outcome would be “tantamount to declaring Title VII inapplicable to such decisions.”
In her concurrence, Justice O’Connor argued that the plaintiff should not get the benefit of the motivating factor test unless she had direct evidence of discrimination. In a later case, the Supreme Court would reject this portion of her analysis. While Justice O’Connor disagreed with the plurality on this direct evidence question, her concurrence generally agreed with the rest of the test enunciated by the plurality. She agreed that the plaintiff could prevail on a discrimination claim by proving something less than “but for” cause.
However, she conceived the plurality’s test as ultimately getting to the question of “but for” cause through its shifting of burdens from plaintiff to defendant. If the plaintiff showed a protected trait was a motivating factor in a decision, and the employer responded by showing that it would have made the same decision absent the protected trait, no liability existed because the protected trait was not a “but for” cause of the decision. While Justice O’Connor believed that Title VII required a “but for” cause standard, she did not think the plaintiff should be entirely responsible for establishing the causal element.