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.