CAUSATION SINCE NASSAR: Some Thoughts
By: John Thomas Moran
Med. Ctr. v.
570 U.S. , 133 S. Ct. 2517 (U.S. 2013),
the burden on retaliation in the Title VII context is but-for causation. That decision was only
based upon the specific wording and statutory framework of Title VII and it does not appear to
impact § 1981 claims for retaliation as allowed under CBOCS West, Inc. v. Humphries, 553 U.S.
442 (2008) in which the "motivating factor" causation standard (not "but-for" causation) is used.
There can be several "but for" causes in any one decision, and several different straws that broke
the camel's back. Thus, in Ponce v. Billington, 679 F.3d 840 (2012) the D.C. Circuit last year
"banish[ed] the word 'sole' from [its] Title VII lexicon!' One example: "consider an entity
undergoing a reduction-in-force that identifies underperforming employees, but selects only the
women from among that group for termination. Although there remains a true and a valid reason
for the action, the women may state a claim under§ 2000e-2(a) because they would not have
been terminated 'but-for' their sex." In that example there are two "but for" causes: performance
and gender. but conceivably a dozen or more could be at issue in any one employment decision
and if one of them is gender it is illegaL
With the Nac'l'Sar decision and its predecessor, Gross v. FBL Financial Services, Inc., 557 U.S.
167 (2009), different causation standards now apply to Title VII retaliation claims and
status-based discrimination claims.
To survive summary judgment and to prevail at trial, an employee will now have to prove that
illegal retaliation by the employer actually caused the harm that is alleged. The alternative and
more lenient standard would have permitted an employee to prove liability even if the allegedly
illegal conduct were just a motivating factor (not the actual reason) for the adverse employment
action.
But it is important to note that "but for" causation does not mean "sole cause." The Supreme
Court has held that a "but for" causation standard was not the same as a "sole cause" standard in
a number of decisions. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n. 10,
(1976). Hazen Paper, which is relied upon in Gross, does not establish a "sole cause" standard
in the ADEA and in fact explicitly references that liability under the ADEA may follow even
when there is liability under both the ADEA and ERISA where the employer's decision to fire
the employee was motivated by both the employee's age and by his pension status. Hazen Paper
Co. v. Biggins, 507 U.S. 604,613 (1993).
The response to both Gross and
lvfcDonald-Douglas.
this:
is, in the judgment of some scholars, to reinvigorate
at Boston University School Law has noted
The courts understand that plaintiffs can prove determinative, "but-for" causation at least as
well through the pretext proof system of McDonnell Douglas as through the use of evidence of
bad motivation, like the sex stereotyping comments in Price Waterhouse.
The McDonnell Douglas pretext proof methodology is especially well suited to proving
determinative causation. The utility of this methodology for plaintiffs is that it allows proof of a
bad discriminatory motive to rest on the proof of the absence of a credible non-discriminatory
motive. Pretext proof allows plaintiffs to prove the presence of the bad by the absence of the
good. Thus, contrary to the understanding of many confused students and judges, the
distinction between indirect proof of the bad through proof of pretext and direct proof of the
bad is not the same as the distinction between direct and circumstantial evidence. As the
Supreme Court has repeatedly tried to make clear, the purpose of the McDonald Douglas prima
facie case is not to set a standard for avoiding dismissal on the pleadings23 or for summary
judgment, nor to set minimum conditions for all proofs of discriminatory intent.2s Rather, by
eliminating the most obvious reasons for a challenged personnel decision, proving the prima
facie case merely forces a defendant to articulate what it claims are the non-discriminatory
reasons for the decision, so that the plaintiff has an opportunity to show those reasons are not
credible, and thereby prove the bad by the absence of the good. Once a defendant presents
evidence of a legitimate reason, the prima facie case has no remaining function or force.26
Notice that proving the total absence of a good reason for a challenged decision proves not only
determinative, "but-for" causation, but also sole causation from the suspected bad reason. And
even when pretext proof does not totally eliminate a good reason, it may prove that the good
reason was not sufficient in itself, thus raising the inference that the bad reason was necessary,
i.e. was a "but-for" cause of the decision. The best and most common proof of pretext is
through better treated comparators outside the protected class, or, in the case of the ADEA,
substantially younger,21 who share the attributes the employer claimed to rely on to justify its
more negative treatment of the plaintiff. Regardless of the nature of pretext proof, however, it
is only effective if it demonstrates that the employer's justification was fully fabricated or at
least was not sufficient to cause the challenged decision, i.e. that some other reason was also
necessary. Logically, one cannot use the inadequacy of good reasons to prove the presence of a
bad reason without proving that the bad reason not only existed, but also was a necessary
cause of the challenged decision.
In most cases employers would want to explain their justifications for a challenged decision
even if not forced to do so by the rebuttable, but mandatory presumption set by the prima facie
case. Most employers, without being forced by some legal presumption, would want to provide
a jury a justification for replacing a qualified older worker with a younger worker. Direct proof
of a bad discriminatory reason, whether or not that direct proof is circumstantial for purposes
of the law of evidence, can at least contribute to proof of determinative causation by
demonstrating the force of the decision maker's bias. zs Plaintiffs should be able to marshal
together all their evidence of discriminatory intent and causation, both direct and pretextbased.29
In most cases, it is probably necessary to demonstrate the inadequacy of employer
justifications, and not just the existence of discriminatory bias, in order to prove determinative,
"but-for" causation.
2
See Swierekiewicz v.
-.nrt>mn
United States Postal Service Board
the
nrnnorhJ made out a
that would be
defendant has done
facie case, whether the
did so is no
relevant. The McDonnell """''UI''.,
framework could not have been intended as a jury control device because
were not available in Title
VII actions when that framework was constructed before the 1991 Act.
See ·see also Reeves v. Sanderson
Inc., 530 U.S.
that the defendant's
one form of circumstantial evidence that is
of
Honor center v.
510
the defendant to carry a burden of production); ncc:vc::>.
t>mrunv.. r nrt><:t>nt;:>rl evidence of a
reason, the McDonnell framework"
issue was 'discrimination vel non.
sole
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).
for
the Court's analysis of direct evidence of age bias along with pretext evidence in
530 U.S. at 151-153.
Finally, the "but for" standard of causation may be a lesson in semantics because one Seventh
Circuit opinion predating Nassar, seems to say that "but for" causation is not enough, that the
employee must establish the
reasons are pretextual. See Casanova v. American Airlines,
Inc., 616 F.3d 695 (7th Cir. 2010). Of course, that puts us back in the A1cDonald-Douglas
framework which we are all familiar with. In Casanova, the 7th Circuit found that the plaintiff's
untruthfulness and insubordination to American Airlines constituted more than adequate grounds
for his termination. In Illinois, after an employer provides a valid reason for a plaintiff's
termination, the plaintiff must establish that the reason offered by the employer is pretextual. In
Casanova, the plaintiff did not provide any evidence to establish that American Airlines' stated
reasons for firing him were pretextual. There it was undisputed that the plaintiff lied and refused
to obey the airlines' procedures and instructions.
3