In Gross, the Supreme Court chose to apply a “but for” cause standard to the ADEA. In this post, I will discuss why the “but for” test does not work for some discrimination claims.
Before starting that discussion, I should explain how the Court’s use of textualism backed it into a corner on the causation issue. In tort law, the words “cause,” “causation,” or “because of” do not magically refer to one type of factual cause. Rather, a court facing a causal issue in a tort case would look at the facts and see what kind of causation inquiry makes sense. Based on the facts of the case the court would decide whether the standard “but for” cause analysis is appropriate or whether the case presents the kind of case where “but for” cause is problematic. Tort law does not require the same causal standard for all cases.
So, are employment discrimination claims like the kinds of cases where “but for” cause analysis works? Or are these cases more like the two raging fires cases in which “but for” cause does not work fairly?
There is no one right answer to this question. This is because employment discrimination cases present lots of different factual scenarios. In some cases, the use of “but for” is not a problem. Let’s take one example. Assume that a worker is fired. She claims that when her supervisor terminated her employment he said “old people do not work hard and I am going to fire all of them.” The supervisor denies this statement and claims he fired the worker because she violated the company attendance policy. The worker denies that she was absent. In this case, there are two competing narratives. Either the supervisor fired the worker because she was old or because she was absent. There are two choices that are mutually exclusive. The use of “but for” cause is fairly straightforward.
But, imagine a very different situation. A committee of three people is trying to decide who to let go in a reduction in force. They must choose between firing a 52-year old worker or a 35-year old worker. During a meeting, one member of the committee states that older people should be fired to make room for new talent. One person states that the 35 year old has slightly better performance reviews than the 52-year old. One person is silent during the meeting. The committee votes. The first two committee members vote to retain the 35-year old worker and the 52-year old worker is terminated.
In this scenario, we know that age was inappropriately interjected into the employment decision, but it is difficult to determine whether it was the “but for” cause of the decision. From this evidence, one might credibly argue that one committee member based her decision on age, another based on performance reviews, and another on an unknown reason. But, we do not necessarily know what would happen if we took age out of the mix. Would the first committee member still vote to terminate the older worker based on the performance reviews? In hindsight, it is nearly impossible to tell. And, this makes it hard for a plaintiff to establish “but for” cause.
One important note: In the hypothetical described in the prior paragraph, the case should go to the jury on the causation question. Drawing all inferences in favor of the plaintiff, the plaintiff has sufficient evidence to convince a reasonable juror that age was the “but for” cause of the decision.