The analysis in Gross is unsatisfying because it relies heavily on a guess about congressional intent. But another part of the Court’s analysis is even more problematic. The causation analysis does not hold together. This post breaks down the causation analysis into its component parts to make it easier to see the flawed reasoning.
The causation analysis has four parts. First, the Court provides the definition of “because” from various dictionaries. This is fine, but it tells us very little about causation in a legal sense. According to Gross, the definition of “because of” is “by reason of” or “on account of.” There can be many reasons for a particular outcome, and these definitions tell us nothing about how to navigate multiple causes. Non-legal dictionary definitions tell us nothing about legal concepts such as factual cause and legal cause. They also do not tell us anything about who has the burden of proof in litigation.
The litany of dictionary definitions is superfluous. It tells us nothing about how causation analysis should proceed in litigation. These definitions provide no guidance about how to navigate important causation problems. What should the causation standard be? Who should be required to prove this standard? How do we handle multiple causes? How do we handle situations with multiple decisionmakers? Should the discrimination statutes borrow causation principles from tort law? If we borrow causation principles from tort law how do these principles fit with other provisions of the discrimination statutes?
In the second step, the Court makes a huge logical leap in one sentence. The Court noted: “Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” The key words in this sentence are “the reason.” This sentence is misleading because it makes it sound as if the discrimination statutes require sole causation. It also makes it seem as if employment decisions can have only one reason.
From here, the Court simply declares that ADEA disparate treatment claims require proof of “but for” cause. To support this decision, the Court cited two cases outside the discrimination context and a torts treatise. Importantly, the Court did not look to Price Waterhouse, the Court’s last discussion about causation in the discrimination context.
Any first year law student can easily see that this sentence hides an important choice. In tort law, courts often use “but for” cause. However, courts also recognize that “but for” cause does not work in certain instances. In these instances, tort law provides another option. The plaintiff can prevail by establishing causation through a substantial factor analysis. I will write more about the differences between “but for” cause and substantial factor cause in a later post.
The key point for this post is that tort law recognizes at least two choices for causation standards. In Gross, the Supreme Court picked one of these standards without any explicit statement that it was making this choice. By citing to two cases and a treatise, the Supreme Court made it appear as if it had only one choice, “but for” cause. The Court’s argument reads as if the law commands only one choice.
In reality, the Court had many choices. “But for” cause was one choice. Substantial factor cause was another. The two-part test in Price Waterhouse provided another option. The Court hides all of this potential ambiguity in its cursory analysis. It also looked to tort law to establish causation under the ADEA. This “tortification” of discrimination law is one of the most important recent moves in discrimination jurisprudence.
One odd part of the textual analysis deserves further attention. If Congress intended to use “but for” cause it could have actually used those words. Tort law does not typically use the words “because of” to mean a specific kind of causation. Rather, tort law tends to use more specific words, such as factual cause, legal cause, and proximate cause, to explain different parts of the causal inquiry. The words “because of” do not inherently signal any particular meaning in tort law.
In the final step, the Court reasons that the plaintiff has the burden of establishing causation. This analysis also hides a choice. As shown in Price Waterhouse, plaintiffs do not always have the burden of proving causation.