Causation, Part 29

We are at post 29 about causation. Yes, 29 posts. That alone should tell you how complex causation has become in federal discrimination law. It is important to take a minute to connect our causation discussion with broader themes about statutory interpretation.

In both Gross and Nassar, the Supreme Court relied on the same argument to justify the results. The common law made them reach a particular result. The common law required certain choices. Whenever you see the Supreme Court using this argument to interpret the federal employment discrimination statutes, it should raise red flags. As we have seen throughout our discussion of causation, the reach to common law masks many choices.

The Court is choosing to look to the common law. With a statute like Title VII, the Court could make another choice—to ignore the common law. Whether to ignore the common law or to embrace it, is an important choice the Court makes.

In Nassar and Gross, the Court is choosing which part of the common law to use and which parts to ignore. In both of these cases, the Court could have looked to the common law and stated that the common law allows a plaintiff to use the substantial factor standard. The Court also could have looked to the common law to justify placing part of the causation burden on the defendant. The Court made important choices about which parts of the common law to use and which parts to ignore.

Interestingly, the Court imports a “but for” cause standard that is typically used in negligence cases into individual disparate treatment cases, which the courts often describe as requiring intentional discrimination.

The idea that tort law demands a particular result is just not true in the discrimination context. Whether to look to tort law is an important choice. It also is important which part of tort law the Court chooses. Tort law did not demand a particular result in either Gross or Nassar. In fact, the Court could have used tort law to justify shifting the causation burden to the defendant and to also require a motivating factor standard of causation.

Causation, Part 28 (Nassar)

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.

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 26

Gross introduced many problems and questions into discrimination law. Even though Title VII and the ADEA use the exact same “because of” language, this language now means one thing for Title VII discrimination claims and has a different meaning for ADEA claims. A Title VII discrimination plaintiff can use the “motivating factor” language to define “because of,” while the ADEA plaintiff must establish “but for” cause.

In cases involving age and an additional protected trait, it is unclear how courts should proceed. Say, for example, that an older woman alleges that she was treated differently both because of her age and her sex. It is unclear what causal standard a court should apply. Should the court apply a motivating factor standard for the sex claim, but a higher “but for” standard for the age claim? If so, how does this practically work?

Gross raises many issues for state law. Many state discrimination statutes prohibit discrimination for all protected classes within one statute. This is unlike the federal statutes, which have separate statutes for age and disability discrimination. Many state discrimination statutes also are construed in line with federal law. However, Gross introduces a new wrinkle. To continue to read these state statutes in line with federal law, the courts will have to construe the state statute to have different meanings, even though the same provision governs both age discrimination and other forms of discrimination. Since Gross relies on a twisted interpretation of the relationship between Title VII, the ADEA, Price Waterhouse, and the 1991 amendments to Title VII, it also is unclear whether Gross should apply to state statutes that do not share that same history.

Finally, Gross raises the causation question for every federal discrimination or related statute. Thus, litigants are now asking whether the Family Medical Leave Act and the Americans with Disabilities Act require “but for” cause. After Gross, litigants asked the same question for Title VII retaliation claims (more on Nassar later).

Causation, Part 25

In Part III of Gross, Justice Thomas finally admits what the real issue is. He admits: “In any event, it is far from clear that the Court would have the same approach [the approach used in Price Waterhouse] were it to consider the question today in the first instance.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178-79 (2009). A majority of the Court in Gross disagreed with a majority of the Court in Price Waterhouse.

Here is where the real reasoning lies. The Court preferred one causation standard over another, and it preferred the standard that made it easier for employers to win cases and made it harder for workers to win them. The Court did not alter ADEA causation because of some special connection between the ADEA and tort law. Tort law did not command the use of a “but for” cause standard. Nonetheless, because the Court had to justify its move away from Price Waterhouse, discrimination law is now left with a bigger dilemma than the one posed by causation. In future posts, I will describe the increasing use of tort law in discrimination cases, a move that was greatly enhanced by Gross.

Causation, Part 24

Prior posts catalogued the Court’s faulty reasoning in Gross. The Court relied on a contorted history of the relationship between Title VII, Price Waterhouse, the ADEA, and the 1991 amendments to Title VII. The Court improperly defaulted to tort law to define causation. It then oversimplified the tort common law by failing to recognize that tort law allows for alternate ways to prove causation and allows for the burden of proof on causation to shift to defendants.

In his dissent in Gross, Justice Breyer discussed an additional problem. Tort cause largely developed in the context of physical events. Indeed, the quintessential negligence example is that of a car accident. Causation analysis that works for car accidents probably does not work well in cases where cause might be a mental state. As Justice Breyer explained:

It is one thing to require a typical tort plaintiff to show “but-for” causation. In that context, reasonably objective scientific or commonsense theories of physical causation make the concept of “but-for” causation comparatively easy to understand and relatively easy to apply. But it is an entirely different matter to determine a “but-for” relation when we consider, not physical forces, but the mind-related characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more often we ascribe motives, after an event, to an individual in light of the individual’s thoughts and other circumstances present at the time of decision. In a case where we characterize an employer’s actions as having been taken out of multiple motives, say, both because the employee was old and because he wore loud clothing, to apply “but-for” causation is to engage in a hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different. The answer to this hypothetical inquiry will often be far from obvious, and, since the employee likely knows less than does the employer about what the employer was thinking at the time, the employer will often be in a stronger position than the employee to provide the answer.

All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer’s decision. . . .

But the law need not automatically assess liability in these circumstances. In Price Waterhouse, the plurality recognized an affirmative defense where the defendant could show that the employee would have been dismissed regardless. The law permits the employer this defense, not because the forbidden motive, age, had no role in the actual decision, but because the employer can show that he would have dismissed the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the showing of a violation, precisely because the defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation.

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 190-92 (2009).

Causation, Part 23 (Gross)

In Gross, the Court explained tort law in a narrow way. This cramped explanation ignores the menu of options tort law provides courts in dealing with causation issues. These options include (1) lowering the importance of causation in intentional tort analysis; (2) providing alternate ways to establish cause, such as “but for” and substantial factor cause; and (3) allowing for the burden of proof to transfer to the defendant in some instances.

But, there is an even more problematic aspect to the case. The Court never explained why its reach to tort law makes sense in the first place. Gross is a good example of a case that doubles down on formalism. First, it purports to use a textual analysis. Second, it uses tort law as its dictionary for its textual analysis.

As discussed in earlier posts, this textual analysis is incorrect in that tort law does not use the words “because of” to mean one particular kind of causation. Nor do these words signal which party bears the burden of establishing causation. Leaving this textual criticism aside, the larger question is why tort law should ground questions about discrimination.

In future posts, I will discuss the disconnect between tort law and discrimination law in greater detail. For now, I raise two points. First, tort law and the common law were inadequate to address workplace harms. This is why many innovations in workplace law are statutory. Tort law did not adequately handle physical injuries to workers. Legislators enacted workers’ compensation statutes. Even though discrimination was a large societal problem, tort law and the common law did not create an answer that adequately addressed it. Rather, states and Congress enacted statutes prohibiting workplace discrimination. It is odd for the Supreme Court to rely heavily on tort common law when that same tort common law proved unable to adequately respond to workplace problems.

Second, there is no evidence that Congress intended to rely on the common law or tort law when it enacted the federal discrimination statutes. Discrimination claims do not contain the same elements as tort claims. For the most part, Congress did not even use typical tort language within these statutes.