The Seventh Circuit had developed an interesting way of thinking about discrimination cases called the convincing mosaic of circumstantial evidence. Under prior Seventh Circuit case law, the court used this phrase to describe one way that a worker could survive summary judgment. If the worker put together enough circumstantial evidence that evidence could be pulled together to create a convincing case that discrimination occurred.
In Ortiz, the Seventh Circuit admitted that the convincing mosaic test created more problems than it solved. Although Ortiz signals the demise of the convincing mosaic test, I want to sing some of its praises and note that it was an important legal innovation. While agreeing that the test is problematic, I want to point out why it was an important interstitial step in discrimination jurisprudence.
In 1973, the Supreme Court developed the McDonnell-Douglas test for evaluating individual disparate treatment claims with circumstantial evidence. Although the Supreme Court explicitly stated otherwise, lower courts began interpreting McDonnell Douglas as though it created the only way of proving an individual disparate treatment case with circumstantial evidence. In many circuits, workers trying to establish a discrimination case must proceed through either McDonnell Douglas or a direct evidence framework. If they fail both tests, their cases are dismissed.
The Seventh Circuit recognized one of the problems with this dichotomy, that neither test fully captured the many ways that a worker might successfully prove discrimination. The court created the convincing mosaic of circumstantial evidence concept as a new way for courts to think about how a worker might show discrimination. By trying to wean lower courts off of the McDonnell-Douglas/direct evidence dichotomy, this test was an important development for discrimination law.
This post continues our discussion of Ortiz. In Ortiz, the Seventh Circuit worried that the direct and indirect frameworks distract trial court judges away from the real substantive issue in a disparate treatment case: whether a protected trait played a role in a negative employment action.
Ortiz recognizes that the core question of discrimination law had been lost in the morass of frameworks the courts created to evaluate discrimination cases. The opinion now requires judges in the Seventh Circuit to focus on a more straightforward approach to discrimination cases. Looking at the evidence as whole could a reasonable jury find that the worker’s protected trait played a negative role in the challenged employment decision? If the answer to this question is yes, a jury should determine whether discrimination occurred. If the answer is no, then summary judgment is appropriate.
The Ortiz case overrules 10 Seventh Circuit cases to the extent that those cases segregated facts into the direct and indirect tests and treated those tests as if they established the elements of a discrimination claim.
In Ortiz v. Werner Enterprises, the Seventh Circuit addresses head on the frameworks used in that circuit for evaluating discrimination cases. Because the frameworks vary slightly by circuit, I will set up the prevailing analysis in the Seventh Circuit prior to Ortiz.
The Seventh Circuit had developed a two-pronged analysis for individual disparate treatment cases. Cases could proceed through a direct method of analysis or under an indirect method. Courts often analyzed the facts of cases under both methods to determine whether a worker could survive summary judgment.
Unfortunately and unintentionally, this framing often caused judges to divide up the facts, what the late Professor Mike Zimmer called “slicing and dicing.” One way to slice and dice a case is to separate all of the so-called “direct evidence” from the indirect evidence. A judge might evaluate all of the direct evidence and find it insufficient to pass the direct evidence test. Likewise, the judge might evaluate all of the indirect evidence and also find that insufficient to pass the indirect evidence test.
The problem is that juries are not asked to evaluate cases in this manner. Juries are asked to determine whether the facts as a whole demonstrate that race, sex, or another protected trait made a difference in an employment outcome. Once a judge (at summary judgment) separates the evidence into different buckets for purposes of funneling that evidence through the various tests, there is a tendency to forget to evaluate the evidence as a whole, as a jury would. This is the fundamental problem that Ortiz addresses: the failure to look at the evidence in its totality.
In late August, the Seventh Circuit issued an important opinion in Ortiz v. Werner Enterprises. Every practitioner and scholar in the field of employment discrimination law should read this case.
In Ortiz, the trial court judge granted summary judgment in the employer’s favor using the available frameworks for evaluating discrimination cases. The appellate court opinion is important because it explicitly starts to break down the formalistic frameworks that control how federal courts often evaluate discrimination cases. Under the current approach to discrimination law, courts run the facts of cases through court-created frameworks. Once the court applies the frameworks, the resulting answer determines whether the case proceeds or not.
Unfortunately, the frameworks do not do a good job of determining whether discrimination occurred. The Ortiz opinion explicitly recognizes this problem and builds on other Seventh Circuit cases that have expressed skepticism about the frameworks. This is a significant step in bringing more rationality to discrimination jurisprudence. I will discuss Ortiz in more detail in future posts. For now, I just want to encourage people to read this important new case.
Last fall, I was happy to start in a new role at the University of Cincinnati College of Law as its Associate Dean of Faculty. It is wonderful to get to celebrate all of the wonderful scholarship created by the Cincinnati Law faculty. I am very lucky to work at an institution that truly values scholarship and shares that knowledge with students, the community, legal practitioners, and other scholars. It is that spirit that motivates me to get back to the blog, especially given all of the developments in federal discrimination law over the last few months.
In the next few posts, I will be taking up an important new case from the Seventh Circuit, a major change in how we view the organization of federal discrimination law, and continue our discussion of causation. I hope you will join me again!
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.
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.