The Seventh Circuit’s Ortiz opinion is extraordinary in many respects. I want to praise it for its candor. The Seventh Circuit recognizes its own role in creating the convincing mosaic of circumstantial evidence test, discusses the hopes it had for the test, and then shows why the test eventually proved less helpful than anticipated. As I stated in my prior post, I still consider the convincing mosaic to be an important innovation in discrimination law that did further the jurisprudence.
What the Seventh Circuit recognizes is that the federal courts have a consistent tendency to want to change the evidentiary frameworks for thinking about discrimination into the elements of the cause of action. This is understandable because some courts have not always been clear about what the frameworks are. McDonnell Douglas does not establish the elements of a discrimination claim. It is a way to help courts think through discrimination claims (whether it does that is a different issue). Likewise, the convincing mosaic of circumstantial evidence test did not constitute the elements of a discrimination case. It was just another way to encourage judges to think about the totality of facts in a case.
Nonetheless, because these evidentiary frameworks look like elements of a claim and because some courts write about them in this way, it is understandable that some judges understand them to be elements of a claim. Ortiz makes clear what should have already been clear: the convincing mosaic test does not state the elements of a discrimination claim.
The Seventh Circuit recognized that the convincing mosaic test was supposed to be helpful to judges. Instead, it produced what the Seventh Circuit called a form of “legal kudzu.”
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.