Robert S. Mantell, BridgeTower Media Newswires
This article addresses the motive and causation standards for proving employment discrimination based on race, age, sex and other protected characteristics where the but-for burden of proof applies.
Using the example of sex discrimination, some cases assert that a plaintiff needs to show that sex was "a determinative factor" in the decision to terminate the plaintiff's employment. Other cases require that consideration of sex was "the determinative factor."
While the standards may appear similar, differing only by using "a" instead of "the," using "the" falsely implies to the judge or jury that bias must be a sole or primary factor in the employer's decision. Sex discrimination is unlawful if it led to an adverse employment action, even if it was merely "the straw that broke the camel's back."
In light of the U.S. Supreme Court's recent discussion of but-for causation in Bostock v. Clayton County, 2020 U.S. Lexis 3252, using burdens such as "the determinative factor" or "the but-for factor" could be considered reversible error. The "the" should be replaced by "a," when describing the plaintiff's burden of proof.
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Split of authority
The Supreme Court initially adopted "a determining factor" when describing the burdens applicable to discrimination cases. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 615 (1993).
The Supreme Court changed direction in 2013, when it stated that "Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action." Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (emphasis added).
However, one year later the Supreme Court walked back that phrase, by purporting to quote Nassar but changing the "the" to an "a." Burrage v. United States, 571 U.S. 204, 212 (2014) ("we held that § 2000e-3(a) 'require[s] proof that the desire to retaliate was [a] but for cause of the challenged employment action.'") (emphasis added but brackets in the original).
The correction in Burrage of the standard articulated in Nassar appears to confirm that using "a" is the proper formulation.
The 1st U.S. Circuit Court of Appeals sometimes uses "a," Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 8 (1st Cir. 2000), and sometimes uses "the." Valle-Santana v. Servicios Legales de P.R., Inc., 804 F.3d 127, 129 (1st Cir. 2015); Loeb v. Textron, Inc., 600 F.2d 1003, 1010-1011, 1019 (1st Cir. 1979) (using both standards).
There does not appear to be discussion about which is the proper standard.
It is time for the courts to end this split of authority and choose "a determinative factor," which is the standard that is consistent with but-for causation. As will be shown, the time for change is ripe, given the recent Bostock decision.
But-for causation permits finding of liability, even if there were multiple reasons for the adverse action
It is unlawful for an employer to fire an employee "because of" race, sex and other characteristics. 42 U.S.C. §2000e-2(a)(1) & (2) (Title VII); G.L.c. 151B, §§4(1). The "because of" benchmark implies a "but-for" analysis, i.e., that employees would not have been fired but-for their sex. Bostock, 2020 U.S. Lexis 3252, at 14-15 (Title VII); Brunner v. Stone & Webster Eng'g Corp., 413 Mass. 698, 699 (1992) (G.L.c. 151B).
But-for is "a sweeping standard." Bostock, 2020 U.S. LEXIS 3252, at 15. The but-for test "directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause." Bostock, 2020 U.S. Lexis 3252, at 14-15; see also Price Waterhouse, 490 U.S. at 240 (consider the employer's decision at the moment it was made). "[I]f changing the employee's sex would have yielded a different choice by the employer - a statutory violation has occurred." Bostock, 2020 U.S. LEXIS 3252, at 20.
Employing this analysis, the Supreme Court recently held that discrimination based on an individual's homosexuality or transgender status violates the Title VII prohibition against adversely treating an employee "because of" sex. Bostock, 2020 U.S. Lexis 3252, at 20-21.
The but-for standard assumes there might be multiple reasons for an employment decision, both legitimate and illegitimate. Bostock, 2020 U.S. Lexis 3252, at 15; Price Waterhouse, 490 U.S. at 241 (Title VII was "meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations"); Lipchitz, 434 Mass. at 506 n. 19, quoting D.B. Dobbs, Torts §168, at 410 (2001).
The fact that legitimate factors also contributed to an employment decision provides no defense, where the employer's decision would have been different if the plaintiff's gender was different. Bostock, 2020 U.S. Lexis 3252, at 15.
Title VII does not "care if other factors besides sex contribute to an employer's discharge decision." Bostock, 2020 U.S. Lexis 3252, at 40. Plaintiffs need only show that their termination was based "in part" on discriminatory motive. Bostock, 2020 U.S. Lexis 3252, at 26.
The but-for standard merely requires that an unlawful factor is "the straw that broke the camel's back." Burrage, 571 U.S. at 211. For example, if a person with debilitating diseases is poisoned and dies, the poison is considered the cause of death, even if, in the absence of disease, the person would have lived. Id., at 211. In that instance, both the poison and the disease are considered but-for reasons for the fatality.
Consequently, where sex discrimination combines with legitimate reasons for an adverse action, sex may still be considered a but-for factor. Bostock, 2020 U.S. Lexis 3252, at 15, 22-23, 40-41.
These principles are illustrated in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), in which the Supreme Court confronted the issue of a "sex plus" claim, in which an unlawful factor (gender) was considered along with a lawful factor (parenthood) in employment decisions.
In Phillips, the employer hired women into the relevant position at the rate of 75 to 80 percent. Id., at 543. However, if a job applicant had young children, the employer would hire fathers but would reject mothers. Id., at 543.
Parenthood is not a protected trait under Title VII, but the court found a violation of Title VII for the employer to reject women but not men, based in part on that lawful factor. Where gender was just one factor considered by the employer, the statute is violated if considerations of gender and other factors are intertwined. Id.; see also McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (race could be considered a but-for factor, even where the immediate cause of the termination was the fact that the white plaintiffs had stolen from the employer).
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Social science confirms that discrimination arises in the presence of other factors
The most significant current psychological models show that discrimination often occurs where the decision-maker can point to non-discriminatory factors justifying its decision. Melissa Hart, "Subjective Decisionmaking and Unconscious Discrimination," 56 Ala. L. Rev. 741, 760 (2005).
In one study, well-meaning participants took part in simulated job selection processes involving Black and white candidates. Id., at 748. Where the choice for the best candidate was clear, no discrimination took place. However, where the candidates' qualifications were marginal, and the candidates' non-selection could be validated based on legitimate criteria, Black candidates were accorded significantly weaker recommendations than similarly credentialed white candidates. Id., at 748, 760-761.
The study was conducted again, 10 years later, yielding the same showing of bias. Id., at 748.
Thus, discrimination emerges when a choice between candidates may be justified by independent, non-discriminatory reasons.
Moreover, discriminatory animus may be triggered by factors independent of gender. For example, studies show that gender discrimination is heightened when women reach a high level of accomplishment in traditionally male roles. Joan C. Williams & Nancy Segal, "Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job," 26 Harv. Women's L.J. 77, 93 (2003).
Therefore, our legal standards should be crafted to make them consistent with how bias manifests itself in real-world applications - where discrimination emerges in the context of other factors.
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'The determinative factor' wrongly implies sole or primary factor
Under the but-for analysis, a plaintiff need not prove that bias was the sole reason for discharge. Bostock, 2020 U.S. Lexis 3252, at 15, 29; Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 7-9 (1998).
However, "the determinative factor" implies that a singular motivation is required. The word "the" can be used to denote singular cause - as in, "the one and only." The word is commonly used "to indicate uniqueness." The American Heritage Dictionary of the English Language, Houghton Mifflin Co. (3rd Ed.), 1992, at 1859.
Requiring a plaintiff to prove that discrimination was "the" causal factor implies that only one factor was operative. Therefore, using "a" is necessary to accurately describe the burden.
Likewise, the Supreme Court has repeatedly rejected the idea that a but-for cause must be the predominant or primary cause. Hazen Paper Co., 507 U.S. at 615-616; Burrage, 571 U.S. at 211 (but-for cause need only be the straw that broke the camel's back); Bostock, 2020 U.S. Lexis 3252, at 15-16, 29, 41.
A cause may satisfy but-for analysis, even if legitimate factors were equally or more important. Bostock, 2020 U.S. LEXIS 3252, at 29. Likewise, liability attaches even if discrimination was not the main factor in the decision. Bostock, 2020 U.S. Lexis 3252, at 32.
The phrases "the determinative factor" and "the but-for factor" wrongly imply that discrimination must have some element of priority over other factors. This does not correctly describe the law. Consequently, courts should use "a" and not "the" when describing the burdens for proving motive and causation.
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Robert S. Mantell practices at Powers, Jodoin, Margolis & Mantell in Boston. Offering input on the above article were attorneys Nancy Richards-Stower and Caryn Groedel.
Published: Tue, Aug 04, 2020
