Three Justices (Justice Kennedy, Chief Justice Rehnquist, and Justice Scalia) dissented in Price Waterhouse. The dissent argued that Title VII’s “because of” language meant the plaintiff was required to establish “but for” cause.
The dissenting opinion uses incorrect legal reasoning that will prevail in later cases like Gross and Nassar. The dissent noted that the phrase “because of” conveys the idea that the protected trait or discriminatory motive made a difference to the outcome. It then equates this idea with “but for” cause. However, the law recognizes other ways to show that something played a role in an outcome outside of the “but for” construct. For example, tort law has long recognized that causation can be established through a substantial factor analysis. The dissent ignored this other, long-accepted way of establishing causation.
The dissent also argued that the Court should not adopt a motivating factor standard. Instead, courts should use the McDonnell Douglas test to evaluate claims. The dissent correctly noted the confusion inherent in multiple proof structures. However, it failed to explain how McDonnell Douglas would operate in instances where a factfinder believed that both a protected trait and a legitimate reason both caused an employment decision.
Nonetheless, the dissent agreed that the two-part test enunciated by the plurality and concurring opinions is ultimately consistent with the “but for” standard. The dissent then discussed the burden-shifting element of the motivating factor analysis and argued that the plaintiff should carry the burden of establishing causation.
Worth noting is the dissent’s correct belief that “but for” does not equate with sole causation. The dissent noted that “sex is a cause for the employment decision, whenever, either by itself or in combination with other factors, it made a difference to the decision.”
Importantly, in characterizing the test described by the plurality and concurring opinions, the dissent indicated that the shift in the burden of persuasion would only occur when the plaintiff established her burden with direct evidence that an unlawful motive played a substantial factor in the decision. Later, in Desert Palace, the Court would hold that direct evidence is not required to proceed on a motivating factor analysis.