Causation, Part 27 (Nassar)

In 2013, the Supreme Court issued its opinion in University of Texas Southwestern Medical Center v. Nassar. That case raised the question of whether Title VII’s retaliation provision required the plaintiff to establish “but for” cause. The Court held that it did. This posts sets up the legal issue decided in Nassar.

Title VII has multiple provisions. One of those provisions, codified at 42 U.S.C. § 2000e-2, provides as follows:

(a) Employer practices

It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; . . .

This provision prohibits an employer from discriminating against an employee because of a protected trait. Later, the statute prohibits retaliation. The anti-retaliation provision is codified at 42 U.S.C. § 2000e-3. It provides as follows:

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Notably, the discrimination provision (§ 2000e-2) uses the word “because” and the retaliation provision (§ 2000e-3) uses that same language.

Since Nassar followed on the heels of Gross, the defendant made the argument that the 1991 amendments to Title VII did not explicitly amend § 2000e-3. Just like with Gross, this argument asked the Court to give a certain meaning to the 1991 amendments. Congress made a choice. For discrimination cases, Congress adopted a motivating factor test and required the defendant to carry some of the causation burden to escape damages. Without any explicit notice that it was doing so, so this argument goes, Congress intended to apply a different causation standard (“but for”) to Title VII retaliation claims and place the entire burden of proof on the plaintiff.

This post sets up the prevailing argument in Nassar. In the next post, I will explain why this history is problematic.

Causation, Part 18 (Gross)

In Gross, the Supreme Court made an unnecessary guess about what Congress intended when it amended Title VII in 1991, but did not make similar amendments to the ADEA. As we will discuss in later posts, this guess gains greater power when the Court recycles it in later cases like Nassar.

The Supreme Court’s guess hides the choices the Court is making. Gross reads as if the Court is merely following congressional intent, an intent to differentiate the way causation works in Title VII and the ADEA. What is really happening, though, is much more interesting. Faced with unknown congressional intent, the Court itself made powerful choices about which way to interpret the ADEA.

I am not arguing that the Supreme Court should not make choices about how to interpret statutes. This is one of the important functions of federal courts. What I am critiquing in this post is the Court’s need to hide the fact that it is making choices. Gross would be a much more compelling and accurate opinion if it simply admitted the Court’s choices.

That more forthright opinion would go something like this. Congress added the motivating factor amendments to Title VII in 1991. It did not similarly amend the ADEA. We do not know what Congress intended when it did not amend the ADEA. Here are the possible choices. Faced with this ambiguity, we must choose among them.

The problem for this more forthright approach is that it is harder for the Court to reach “but for” cause as the outcome without addressing Price Waterhouse. In Price Waterhouse, the Court interpreted Title VII’s “because of” language to allow motivating factor causation. Congress borrowed from Title VII’s language when it created the ADEA. The ADEA uses the exact same “because of” language as Title VII. Through the 1991 amendments to Title VII, Congress reaffirmed that the Price Waterhouse Court interpreted Title VII correctly. And, even without these amendments, the “because of” language in Title VII would still be interpreted as allowing a motivating factor analysis. The only thing the 1991 amendments changed in the motivating factor analysis was the effect of the employer’s proof of the affirmative defense.

Without the “guess” about congressional intent, the Gross Court would either have to overrule Price Waterhouse or make a different argument about why it does not apply in the ADEA context. The Court was unwilling to overrule Price Waterhouse. And it was unable to credibly make an argument that Price Waterhouse does not apply to the ADEA.

Causation, Part 16 (Gross)

In this post, I explore how the Gross decision mischaracterized the 1991 amendments to Title VII and their effect on the ADEA.

As we discussed in the last post, Congress’ reaction to Price Waterhouse was mixed. Price Waterhouse has a two-part structure. First, the plaintiff has to prove a protected trait played a motivating factor in an employment decision. Second, if the employee proves this, the employer could completely escape liability if it proved it would have made the same decision, absent the improper consideration of race, gender or other traits.

Through the 1991 amendments, Congress reaffirmed the first part of the holding, that a plaintiff can prevail on a discrimination claim by establishing a protected trait played a motivating factor in a decision. This portion of the 1991 amendments added nothing new to Title VII. It simplify codified a definition that already existed in the case law.

Congress believed that the Supreme Court got the first part of the Price Waterhouse analysis right and the second half of the analysis wrong.

Congress believed that this second part favored employers too much. It changed the second part of the test to favor employees more. Under the 1991 amendments, if the employer established its affirmative defense, it would still be liable for violating Title VII. The affirmative defense would give the employer a partial defense to certain kinds of damages. This is very different than the second half of Price Waterhouse, which would have allowed the employer to escape liability completely upon proof of the affirmative defense. This change to the second part of Price Waterhouse is codified in a different part of Title VII, 42 U.S.C. § 2000e-5(g)(2)(B).

To reiterate, Congress thought the Supreme Court’s interpretation of Title VII in Price Waterhouse was too conservative. Congress liberalized Title VII through the 1991 motivating factor amendments by making the second part of the Price Waterhouse test more employee-friendly. It is highly problematic for the Court in Gross to take this history and use it to justify narrowing the reach of the ADEA.

Nonetheless, the Court does so. It claims that because Congress did not amend the ADEA to include the motivating factor language, then Congress intended to use the more rigorous “but for” standard for age discrimination claims. This is the explanation least consistent with history of the statutes, the structure of the statutes, and the Court’s own precedent.

Admittedly, the failure to amend the ADEA in 1991 introduces some ambiguity about Congress’ intent. But those questions do not go to the entire motivating factor analysis. Rather, the ambiguity only regards the second half of Price Waterhouse.

With or without the 1991 amendments, Title VII discrimination claims would use a motivating factor standard. The only thing the 1991 “motivating factor” amendments changed about Title VII was the affirmative defense to liability. This new, more employee-friendly affirmative defense was not added to the ADEA. The question Gross should have asked is what it means for the ADEA to lack this new affirmative defense. In the next post, I will explore the available options.

Causation Part 15 (Gross)

Gross is one of the worst reasoned cases in employment discrimination jurisprudence. I want to be careful in explaining what I mean by this. I do not mean that there are not ways to reason to the Court’s ultimate holding in the case. Rather, the reasons that the Court chose do not properly support its holding. The Court’s reasoning unnecessarily complicates employment discrimination law and oversimplifies causation analysis, as we will see when we examine the Nassar decision. In the next few posts, I will discuss the most problematic aspects of the Gross decision.

The first problem with Gross is that it mischaracterizes the relationship between Title VII, the ADEA, Price Waterhouse and the 1991 amendments to Title VII.   History is important here, as is the structure of Title VII and the ADEA. This history and structure get complicated, so I appreciate your patience as I break it down piece by piece.

Title VII is enacted in 1964. Title VII has a primary operative provision, which is codified at 42 U.S.C. § 2000e-2(a). That subsection provides as follows:

(a) Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

It is the “because of” language in this subsection that the Court interpreted in Price Waterhouse. Just three years after it enacted Title VII, Congress chose to use the exact same “because of” language from Title VII in the ADEA. The main language of the ADEA, found at 29 U.S.C. § 623(a) is as follows:

(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age. . . .

In Price Waterhouse, the Court interpreted the meaning of those words “because of.” A majority of the Court held that those words meant that the plaintiff can prevail on a claim by establishing that a protected trait played a motivating factor in an adverse decision. Congress used the exact same words in the ADEA and these words should have the same meaning as they do under Title VII.

If Gross were decided prior to the 1991 amendments to Title VII, it is clear that Price Waterhouse’s MAJORITY opinion about the substantive standard would have applied to the ADEA. The question then becomes how the 1991 amendments to Title VII should affect the ADEA causation analysis.

Structure is important. In the 1991 amendments, Congress did not choose to amend the main operative provision of Title VII. Rather, it added a new definitional subsection to the statute. That definitional subsection is found at 42 U.S.C. § 2000e-2(m). It provides as follows:

(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

This subsection simply reaffirms the Price Waterhouse majority that a plaintiff can establish a violation under Title VII by showing a protected trait was a motivating factor in an employment decision. Subsection (m) is simply approving the motivating factor analysis in Price Waterhouse. Without subsection (m), Title VII would still use the motivating factor analysis for discrimination claims. We would just look to Price Waterhouse for that standard, rather than the statutory language.

Subsection (m) does not create a new cause of action or add a new “claim” under Title VII. The Supreme Court clarified this later in its Nassar decision. In Nassar, the Supreme Court noted: “For one thing, § 2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.”

So, to summarize. Congress used the exact same “because of language” in Title VII and the ADEA. In Price Waterhouse, the Supreme Court interpreted that language to allow a motivating factor causation analysis. In the 1991 amendments to Title VII, Congress affirmed that the Price Waterhouse Court was correct when it used motivating factor analysis in Title VII.

Both Congress and the Price Waterhouse Court agreed that the meaning of the words “because of” in Title VII meant “motivating factor.” Congress’ uses the same “because of” language in the ADEA. “Because of” under the ADEA should mean exactly the same thing as “because of” under Title VII.

But, as I will discuss in the next post, Congress’ approval of Price Waterhouse was not complete approval. And this is where the analysis starts to get trickier.

Causation, Part 13 (1991 amendments to Title VII)

In 1991, Congress responded to several Supreme Court decisions by amending Title VII. Congress inserted language in Title VII making it clear that a plaintiff may prevail under Title VII if she establishes a protected trait was a “motivating factor” for a decision. 42 U.S.C. § 2000e-2(m) (2006). This portion of the 1991 amendment affirms Price Waterhouse. Congress affirmed the decision by explicitly inserting a portion of its holding into the statute.

The 1991 amendments also codified the two-part structure described in Price Waterhouse. Congress inserted an affirmative defense into the statute. Congress’ disagreement with Price Waterhouse related to the effect of the affirmative defense. In Price Waterhouse, the Court held that when the employer successfully established the affirmative defense, it would not face liability. Congress disagreed that the proof of the affirmative defense should erase all employer liability. Instead, Congress provided that the employer may establish a limited defense as to damages only if it shows it would have made the same decision absent a protected trait. 42 U.S.C. § 2000e-2(m) & § 2000e-5(g)(2)(B).

In Gross, the Supreme Court will rely on an inappropriate characterization of the relationship between Price Waterhouse and the 1991 amendments to justify its causation analysis under the ADEA. Through the 1991 amendments, Congress largely reaffirmed Price Waterhouse. It only disagreed with the decision to the extent that it thought the affirmative defense was too employer-friendly.

When Congress amended Title VII in 1991, it did not add similar language to the ADEA or the ADA. Questions remained about what the lack of amendment meant, especially in the ADEA context. Should the courts interpret the ADEA to be consistent with the newly amended Title VII, should the courts interpret the ADEA through the lens of Price Waterhouse, or did the ADEA call for a different analysis?