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 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.

Causation, Part 22 (Gross)

In Gross, the Supreme Court facially relies on tort principles of “but for” cause.  However, as discussed in the last post, its use of tort law is unsatisfying in at least two respects. First, in tort law, causation analysis usually plays a larger role in negligence cases. Since courts often characterize disparate treatment cases as requiring “intent,” it is odd that the Court would apply a negligence analysis to what the courts characterize as an intentional wrong. Second, tort law allows courts to choose between at least two models of causation, depending on the facts of the case. In a negligence case, courts can resort to “but for” cause, but they often have the choice of using a substantial factor analysis in those cases where “but for” cause does not work.

In this post, I would like to discuss a third way in which the Gross Court gets the tort law wrong. Gross assumes that a plaintiff is always required to establish causation. The Court is correct that this is the usual practice. However, every first year law students’ study of causation explores case law that places some of the burden of proving causation on the defendant. In cases where the defendant has better access to information about causation or where it would be unfair to place the entire burden on the plaintiff, tort law allows some of the causation burden to fall on the defendant.

Recall the case of Summers v. Tice, a common staple in first year law classes. In that case, three people go quail hunting. During the hunt, two members of the hunting party shoot at a quail. The shots fired at the quail are also fired in the general direction of the third member of the hunting party, Summers. Summers is shot, once in the lip and once in the face. He does not know who shot him. The two other members of the hunting party discharged their weapons in the plaintiff’s direction in a careless way. The evidence showed that at least one of these two careless hunters caused the plaintiff’s injury. But, it would be nearly impossible for the plaintiff to prove whether he was shot twice by the same defendant or whether each defendant shot him, one in the lip and the other in the face.

In Summers, if the court required the plaintiff to establish causation, the plaintiff would lose because he could not determine which of the two hunters shot him. Finding this outcome to be unfair, the court shifted some of the causation responsibility to the defendants. The court did require the plaintiff to establish some causation. The plaintiff in the case showed that he was shot and that both of the defendants were shooting carelessly in his direction. The court found this was enough to establish both defendants’ liability. If the defendants wanted to escape liability, they would need to establish that they did not injure the plaintiff.

This reasoning rests on two arguments. First, the defendants had better access to information. Second, both defendants were acting in a careless way and it would be unfair to leave the injured plaintiff without a remedy because of how the courts generally choose to allocate burdens of proof.

In Gross, the court glosses over this aspect of tort law. Tort law allows for the possibility of placing some of the causation burden on defendants. And, Price Waterhouse recognized that discrimination cases presented this kind of scenario. The employer best understands why it took a particular action and has better access to information. It also controls the decisionmaking processes and policies.

Switching some of the causation burden to defendants does not let plaintiffs off the hook. Just like in Summers, discrimination plaintiffs are still required to prove some connection between their negative treatment and a protected trait. Once they do this, though, the employer is in a better position to show that it would have taken the same decision absent the consideration of the protected trait.

Causation, Part 21 (Gross)

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.