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

The Supreme Court’s decision in Nassar is now out.  As discussed in my earlier post, the central issue in Nassar is whether or not retaliation plaintiffs under Title VII get the benefit of the “mixed motives” burden-shifting regime (recognized by the Supreme Court in Price Waterhouse v. Hopkins, and codified by Congress in the Civil Rights Act of 1991), under which a showing that a statutorily-proscribed factor (sex, race, retaliation, etc.) motivated the Defendant in part is enough to shift the burden to the Defendant to show they would have taken the same act anyways (or in the CRA 1991 version of the test, to establish liability and entitlement to limited remedies).

In a 5-4 holding, the Court today in Nassar concludes that Title VII retaliation Plaintiffs do not get the burden of the mixed motives test. This holding is not terribly surprising in light of the Court’s 2009 decision in Gross v. FBL Financial, although there were some strong arguments as to why retaliation claims should be treated differently (most notably, the Court has traditionally treated retaliation claims as part and parcel of proscriptions on substantive discrimination, strongly suggesting that the adoption of a mixed motives framework vis-à-vis the latter must be treated as also extending such a framework to the former). The Court’s extension of Gross to Title VII retaliation claims strongly suggests that a majority of the Court is committed to extending Gross to all statutory claims lacking explicit language authorizing mixed-motives burden shifting, and is unlikely to retreat from or limit the application of Gross (a case many observers believed was wrongly decided).

On the other important lurking issue underlying Nassarwhether the rejection of a mixed motives burden-shifting regime means a requirement of “sole” motivation or causationNassar does little to dispel the confusion generated by Gross.  I discuss this issue more fully in my prior post.  To reiterate briefly here: in the aftermath of Gross, anti-discrimination defendants began to argue that claims not subject to a mixed-motives burden shifting regime should be required to show that the illegal consideration (e.g., age) was “the but for” or sole cause of the employer’s action. Many (but not all) courts rejected this argument as inconsistent with the long-standing principle in anti-discrimination law that a simple showing of but-for causation is sufficient to establish liability, even where a mixed-motives burden-shifting regime does not apply. (That is to say, a Plaintiff must—absent resort to the “mixed motives” burden-shifting regime—show that the illegal motivation was “a but-for cause,” but need not show sole or exclusive cause). As others have observed, the sole cause approach is also inconsistent in many instances with demonstrable Congressional intent.

Both sides of this dispute will no doubt find fodder for their arguments in the Court’s decision in Nassar today. The Court repeats some of its most confusing language from Gross, referring to the issue as whether a Plaintiff must establish that retaliation was “the but-for cause” of the employer’s actions—but then concludes by restating its core holding as a requirement that a Plaintiff must show that retaliation was “a but-for cause” of the alleged adverse action. Nassar Slip Op at 23 (emphasis added). And the dissent (Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan) only further confuses the issue by seemingly suggesting (although not directly stating) that the Court’s majority is demanding a “sole” causation standard (something the majority does not purport to do).  Nassar Dissent at 24.

In any event, I predict that we can expect to see much more of the “sole cause” argument from anti-discrimination defendants in the lower courts in the upcoming years.  Absent clear direction from the Supreme Court, this is an irresistible argument for discrimination defendants, for fairly obvious reasons (virtually no plaintiff is going to be able to demonstrate sole cause).  It remains to be seen how broadly receptive the lower courts will be to the argument (to date, Defendant successes have largely been confined to district court decisions, but most circuits have not yet addressed the issue, see, e.g., here and here for helpful compilations of relevant holdings).

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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.