Justice Kennedy wrote the majority opinion in Nassar. He begins with fairly non-controversial statements. The law typically requires some link between the injury sustained and the wrong alleged. This required link is called causation. Causation is a concept often used in tort law. So far, so good.
Later, Justice Kennedy continues the discussion. He again begins with fairly non-controversial statements. He mentions the idea of causation in fact. He notes that there must be a showing the defendant’s conduct did in fact cause the plaintiff’s injury. He notes that federal discrimination law requires some showing of factual cause.
Starting with lists of non-controversial legal ideas is an interesting rhetorical device. It is easy for the reader to keep reading the opinion and to continue to believe that the rest of the statements of law are likewise non-controversial. However, in the second paragraph of Part II.A. of Nassar, Justice Kennedy starts making important choices.
He notes that, in the usual course, tort law requires “but for” causation. He then notes that this common law of torts is the background against which Congress legislated in enacting Title VII. He declares that these are the default rules that Congress “is presumed to have incorporated” when it enacted Title VII.
These are two important choices. As discussed throughout this blog, it is not clear that Congress was intentionally legislating against the backdrop of the common law when it created Title VII. In Title VII, Congress created legislation that radically changed common law notions of at-will employment. It would be strange for Congress to intend to also adopt common law definitions of words to define a statutory regime that did not grow from the common law and is a rejection of many core ideas of at-will employment. Further, Congress presumably knew how to use language from tort law if it intended Title VII to be interpreted through the lens of tort law. At the time Title VII was enacted, the words “because of” were not known as a legal shorthand for “but for” cause.
The use of “but for” cause is another choice. In a string cite, the majority recognizes the possibility of a causation standard that is less than “but for” cause. However, the majority quickly denounces this standard as being one that is rarely used. Unfortunately, what the majority ignores is that discrimination cases often present the kind of scenario where “but for” cause does not work—where there are two causes, both of which could independently create the entire harm.
This part of the opinion also ignores the fact that tort law does not always require the plaintiff to establish “but for” cause.