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

I wanted to call to readers’ attention a civil rights case that in the midst of all of the blockbuster cases of this term has not attracted quite as much attention, but has the potential to very significantly impact the practical implementation of many of the nation’s civil rights laws – University of Texas Southwestern Medical Center v. Nassar.

What is formally at stake in Nassar is whether retaliation claims under Title VII—and perhaps any civil rights statute that does not explicitly provide for “mixed motives” burden-shifting—are subject to the mixed motives test first developed in Price Waterhouse v. Hopkins and codified in the Civil Rights Act of 1991. Based on the Supreme Court’s opinion in Gross v. FBL Financial, it seems fairly likely that the Court will find the answer to this question to be no (although there are also many strong arguments for why the result should be a “yes,” see e.g., here).

This outcome in and of itself would likely further depress the already dismal success rates of anti-discrimination plaintiffs. But far more troubling is the possibility that Nassar—like Gross before it—will further entrench the conceptual sloppiness that the use of the term “mixed motives” to describe a particular burden-shifting paradigm has allowed to slip into the law. In short, there is a real possibility that the Court’s decision in Nassar may encourage or require lower courts to require something approaching “sole” causation in many federal civil rights cases (i.e., that disability, age, retaliation, etc. be the “sole” cause of the employer’s actions)—a virtual impossibility in practical terms.

For those who are not intimately familiar with the increasingly arcane twists and turns of anti-discrimination doctrine, a bit of background may be in order. The mixed motives burden-shifting test originally developed in Price Waterhouse v. Hopkins as a way for the plaintiff to shift the burden of the proof to the defendant where she had proven that her protected class status (sex, age, race, etc.) was a motivating factor in the defendant’s actions. Congress went even further in codifying the mixed motives paradigm in the Civil Rights Act of 1991, providing that a showing of motivating factor was enough to prove liability, albeit with limited remedies if the Defendant would have taken the same action even absent the illicit considerations.

On its face, Nassar (and Gross before it) deal just with the question of whether this burden-shifting paradigm (and perhaps the CRA 1991 amendments) are available to Plaintiffs bringing claims under statutory provisions that weren’t amended by the Civil Rights Act of 1991 to include explicit mixed motives language.

But it is easy to see how the linguistics here—and in particular the description of the question as one of whether a “mixed motives” paradigm is available—has led to some conceptual confusion (and an appealing argument for anti-discrimination defendants). After all, one might reason, if the “mixed motives” paradigm doesn’t apply, then surely plaintiffs under these statutes must prove that age/disability/retaliation/etc. were the sole cause of the adverse action.

But this of course ignores the fact that anti-discrimination Plaintiffs have always been able to prove up claims through a simple showing of but-for causation, even without resort to the “mixed motives” burden shifting paradigm. In this way, the term “mixed motives” is a misnomer—Plaintiffs have always been able to bring claims involving more than one motive without resort to the mixed motives paradigm, so long as they can show that their protected class status was “a” but-for cause. There are other powerful legal arguments as well—not the least of which is that Congress in several instances deliberately rejected a “sole” cause standard under the anti-discrimination laws in question—that make clear why doctrinally, this argument makes little sense.

Hopefully, whatever it does with the burden-shifting question, the Court will clarify—rather than further—this conceptual confusion. Virtually no human behavior is based on a single consideration. Nevertheless, I think most people would agree that it is a wrong in the sense that the anti-discrimination laws are intended to prevent for an employer to fire an employee for offenses that would have been ignored, had the employee not been a member of a protected class. As the Seventh Circuit put it in Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir.1990): “The statute does not protect merely the [protected class] worker who is perfect from the standpoint of his employer; such a worker needs no protection except from irrational employers, and they are rare. It protects, as a practical matter, the imperfect [protected class] worker from being treated worse than the imperfect [majority] one.”

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5 Responses

  1. Brian Clarke says:

    The underlying causation issue is, in my view anyway, the far more problematic issue for the future of anti-discrimination law. In Nassar itself, both the employer’s counsel and the trial judge referred to the “but for” standard from Gross as a “sole cause” standard. The language of Gross, of course, is primarily to blame for this problem, as it refers to “THE but for cause” and “THE reason” for the discrimination (rather than “a but for cause” or “a reason” for the discrimination).

    I suggest a possible face-saving way for the Court to fix this issue in a recent essay in the California Law Review:

    Hopefully the Court will sort this issue out in Nassar.

  2. Katie Eyer says:

    Brian, I completely agree. This is by far the biggest risk presented by Gross in my opinion. Thanks for posing a link to your piece — hopefully the Court will embrace a similar approach.

  3. Sandra Sperino says:

    Thank you for posting on this important case!

  4. Those who are following Nassar might also be interested in the amicus brief that I filed in the case, arguing that Gross was wrongly decided — in particular, that the use of the word “because” doesn’t require but-for causation. The evidence in support of that argument includes quotes from every member of the Gross majority using “because” in a way that was pretty clearly not intended to entail but-for causation.

  5. Brian Clarke says:

    And . . . Justice Kennedy, writing for the majority in Nassar, confuses matters even more. He repeatedly refers to “the but for cause” and, in the final paragraph states that the plaintiff must establish that retaliatory animus was “a but for cause.” He repeated the particularly troubling passage from Gross verbatim (including the unhelpful citations), yet also cites to the Restatement (Third) of Torts which contains a far more nuanced approach to factual causation. No mention of the “sole causation” problem — despite the fact that he addressed that directly in his Price Waterhouse dissent.

    Oh, well. I see another essay in my future.