Causation, Part 12 (Price Waterhouse)

As demonstrated by the prior posts, Price Waterhouse is a complicated decision. A majority of the Court agreed that courts should evaluate motivating factor cases through a two-part framework.

The plaintiff would first be required to demonstrate that a protected trait played a motivating factor in an employment decision. After establishing this, the employer would then have the opportunity to establish that it would have made the same decision absent consideration of the protected trait. If the employer was successful in establishing this affirmative defense, the employer would prevail. In other words, the suit would end by declaring the employer had not engaged in discrimination. If the plaintiff met her burden and the employer failed to establish its affirmative defense, the plaintiff would prevail.

Nonetheless, it is important to keep in mind the most important takeaway from the case. A majority of the Supreme Court interpreted the “because of” language in Title VII’s primary operative provision as allowing a plaintiff to proceed without showing “but for” cause. The plaintiff was only responsible for establishing that a protected trait was a motivating factor in an employment decision. A majority of the Justices also agreed that a tort, “but for” cause analysis was not required under Title VII.

It is important to separate this question from the separate question of what the employer’s showing of the affirmative defense accomplishes. In Price Waterhouse, the plurality and concurring opinions agreed that if the employer met its burden on the affirmative defense, the employer would escape Title VII liability. It is this second part of Price Waterhouse that Congress responds to in the 1991 amendments to Title VII.

It is also important when examining Price Waterhouse’s causation analysis to not become distracted by many of the other disagreements that were happening in the background. Price Waterhouse contained many threads: about whether Title VII is a tort, about the intersection of motivating factor analysis with McDonnell Douglas, about whether sex stereotyping is a separate claim, about whether direct evidence is required to proceed under the motivating factor analysis, and about whether it is proper to ground the Title VII causation analysis in tort law or First Amendment employment law. The disagreement on all of these issues is distracting, but it does not eliminate the fact that a majority of the Justices in Price Waterhouse agreed that Title VII does not require a plaintiff to establish “but for” cause.

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