Sole Motives and University of Texas Southwestern Medical Center v. Nassar, Part II

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2 Responses

  1. AF says:

    It seems to me that a lot of the confusion here comes from the plurality’s reasoning in PriceWaterhouse, and Congress’s subsequent amendments, which made the question of mixed motives more complicated than it needed to be.

    In PriceWaterhouse, the Court imposed a burden-shifting framework for deciding “mixed motives” cases, shifting the burden to the defendant to establish lack of but-for causation once plaintiff establishes that discrimination is a motivating factor. In explaining its reasoning, the Court pointed out that under tort law, the burden shifts to the defendant to disprove but-for causation once the plaintiff shows that the defendant was one of two candidates to be the “sole cause” of the plaintiff’s harm.

    This was unfortunate. The idea of a “sole cause” comes from a Summers v. Tice-type situation, where two defendants fired guns and only one of them could have injured the plaintiff. It makes little sense in the employment context, where actions are commonly based on multiple factors, with none being the “sole cause.” By applying the “sole cause” framework to employment law, PriceWaterhouse invited the mistaken idea that the only alternative to its burden-shifting framework — or to Congress’s heightened “mixed motive” framework where liability can be imposed in the absence of but-for causation — is to impose the burden on the plaintiff to show that discrimination is the “sole cause.”

    That said, it’s not clear to me that this burden is actually being imposed to any significant extent. Most courts have explicitly rejected the “sole cause” test, correctly noting that the question is whether discrimination is a but-for cause. And I suspect (though I don’t know) that even the few courts that use the term “sole cause” would find for the plaintiff if the plaintiff shows that but for discrimination, she would not have been subject to an adverse employment action.

  2. Katie Eyer says:

    AF, I agree — this conceptual confusion has been kicking around ever since Price Waterhouse — Gross just gave it new legs. And most courts have rejected it, even post-Gross. But I wouldn’t be surprised if one or two of the circuits most hostile to employment discrimination claims (none of which I believe have considered the argument post-Gross) give it a more receptive audience, although there are certainly good arguments as to why they should not.

    As to what a judge would do faced with a sole causation standard, I am not as optimistic. Given the number of cases (including some with very strong facts) that get JMOL or summary judgment (or increasingly, motions to dismiss) granted against them under a but-for cause standard, a sole cause standard seems to me potentially disastrous for discrimination plaintiffs.