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 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 14 (Gross)

In prior posts I examined the Price Waterhouse decision and the 1991 amendments to Title VII. In this post, we fast forward to the Supreme Court’s 2009 decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). Gross represents the next significant case in the Supreme Court’s causation jurisprudence.

In Gross, the Court held that to prevail on a discrimination claim under the Age Discrimination in Employment Act (ADEA) a plaintiff must establish “but for” cause. Remember that there are two important causation questions at play: (1) what is the substantive causation burden and (2) which litigant is required to establish causation.

Gross is in direct conflict with the plurality’s opinion in Price Waterhouse, which held that a plaintiff proceeding on a discrimination claim under Title VII must establish that a protected trait played a motivating factor in an employment decision.

This post will walk through the Gross decision and subsequent posts will deconstruct that decision. Gross did not come before the Court as a causation case, a key fact that I will discuss in a subsequent post. The question the Court accepted was whether a worker must present direct evidence of age discrimination to claim the benefit of a motivating factor analysis under the ADEA. The Court did not answer this question. Rather, the Court answered the very different question of whether the ADEA allowed a motivating factor analysis at all.

Given the existence of Price Waterhouse, the Court first had to explain why it was not following that decision. In one paragraph, the Court explained that the ADEA is different than Title VII because Congress chose to amend Title VII in 1991 to explicitly include a motivating factor analysis. Congress did not so amend the ADEA. The Court characterized Congress’ failure to amend the main provisions of the ADEA as proof that the causation analysis should proceed differently under the two statutes.

Having cast aside Price Waterhouse, the majority examines the text of the ADEA. Justice Thomas looks up the meaning of the words “because of” in a Webster’s dictionary and finds these words mean “by reason of” or “on account of.” He claims this is the “ordinary” meaning of the words “because of.” He then cites two cases from other contexts and a torts treatise to say that the ordinary meaning “because of” means “but for” cause.

In a quick sentence Justice Thomas then declares that this also means that the plaintiff bears the burden of establishing causation. Justice Thomas reimagines prior ADEA cases as requiring a plaintiff to establish “but for” cause. In Section III of the opinion, Justice Thomas noted that if Price Waterhouse came before the current court, it would likely not be decided the same way. He noted that the decision’s burden-shifting structure is difficult to apply and should not be extended into the ADEA context.

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?

Causation, Part 12 (Price Waterhouse)

As demonstrated by the prior posts, Price Waterhouse is a complicated decision. A majority of the Court agreed that courts should evaluate motivating factor cases through a two-part framework.

The plaintiff would first be required to demonstrate that a protected trait played a motivating factor in an employment decision. After establishing this, the employer would then have the opportunity to establish that it would have made the same decision absent consideration of the protected trait. If the employer was successful in establishing this affirmative defense, the employer would prevail. In other words, the suit would end by declaring the employer had not engaged in discrimination. If the plaintiff met her burden and the employer failed to establish its affirmative defense, the plaintiff would prevail.

Nonetheless, it is important to keep in mind the most important takeaway from the case. A majority of the Supreme Court interpreted the “because of” language in Title VII’s primary operative provision as allowing a plaintiff to proceed without showing “but for” cause. The plaintiff was only responsible for establishing that a protected trait was a motivating factor in an employment decision. A majority of the Justices also agreed that a tort, “but for” cause analysis was not required under Title VII.

It is important to separate this question from the separate question of what the employer’s showing of the affirmative defense accomplishes. In Price Waterhouse, the plurality and concurring opinions agreed that if the employer met its burden on the affirmative defense, the employer would escape Title VII liability. It is this second part of Price Waterhouse that Congress responds to in the 1991 amendments to Title VII.

It is also important when examining Price Waterhouse’s causation analysis to not become distracted by many of the other disagreements that were happening in the background. Price Waterhouse contained many threads: about whether Title VII is a tort, about the intersection of motivating factor analysis with McDonnell Douglas, about whether sex stereotyping is a separate claim, about whether direct evidence is required to proceed under the motivating factor analysis, and about whether it is proper to ground the Title VII causation analysis in tort law or First Amendment employment law. The disagreement on all of these issues is distracting, but it does not eliminate the fact that a majority of the Justices in Price Waterhouse agreed that Title VII does not require a plaintiff to establish “but for” cause.