Silently Revisiting Gross v FBL - Does the "Causation Standard" Make a Difference

I'm back.  The press of work and other good causes prevented me from updating the blog.  For that I apologize.

I was prompted to write a post because of a Sixth Circuit decision that came out today.  A teacher at a high school in Michigan sued the school claiming he had been retaliated against under the first amendment for having filed a prior lawsuit alleging harassment of his daughter by another teacher.  (While constitutional retaliation clams are sometimes different than statutory retaliation claims, those differences are unimportant here.)

What caught my eye was the court's description of the causation standard.  In 1977, in a case called Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285–86 (1977), the Supreme Court said that constitutional retaliation claims required the plaintiff to establish that the improper motive played a "substantial" or "motivating" factor in the decision.  The Court didn't explain but cited to a companion case decided the same day, Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), which explained, among other things, that the constitution did not require a "sole cause" showing but that the evidence in that case failed to show a racial bias motivated the decision.

Skipping forward to today, the Sixth Circuit set out the "substantial or motivating factor" standard from Mt. Healthy saying "we have interpreted this inquiry to mean that a motivating factor is essentially but-for cause—without which the action being challenged simply would not have been taken." (Quotations omitted.)

That caught my eye because  the 1991 amendments to Title VII - which said a plaintiff can prevail if he or she shows discrimination was a "motivating factor" - have led many to argue that "motivating factor" is a lower or lesser standard than "but for" causation.  Most court decisions simply assume that there is a difference.  (But see Harper, The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991, 58 Buffalo L. Rev. 69 (2010) (discussing difference but ultimately drawing unsupported conclusion that Congress must have  intended there to be a difference between a "motivating" and "substantial" factor).  The Supreme Court decision in Gross didn't help this by contrasting the Title VII language from the language in the ADEA: "Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish a discrimination by showing that age was simply a motivating factor."  Gross v. FBL Financial Services, Inc., 557 U.S. ____ (2009).  Loose language read out of context is the bane of any jurist or lawyer.  Read in context, the Court seems to have been attempting to explain its holding - that the dual motive theory does not apply to the ADEA.


So what does this mean, practically? Anyone who thinks they can coherently explain the difference (or that there is a difference) between a "contributing", "motivating", "substantial", "causal" or "because of" / "but for" factor is trying to sell you the Brooklyn Bridge.  I've been practicing employment law for 20 plus years and would not begin to try and explain it.  Employers certainly shouldn't get way-laid by concerns over causation or motivation.

Seventh Circuit holds ADA Does not Adopt Mixed Motives Damages Provision from Title VII

When I previoulsy wrote about the age discrimination decision in Gross v. FBL Services, which held the mixed motives analysis doesn't apply to age discrimination claims, I deliberately avoided explaining what was meant by mixed motives analysis.  I simply said that in a Title VII mixed motives claim, "the employee can partially win."

Today's Americans with Disabilities Act decision from the Seventh Circuit requires me to more fully explain what I meant. 

Because of amendments to Title VII in 1991, if a jury finds that the employer's motives were not entirely pure but that it would have nevertheless made the same decision, the court may award the employee limited relief.  The employee cannot get damages (including backpay) nor can the court order the employee be  reinstated.  The employee can get other injunctive relief (i.e. an order prohibiting future discrimination) and can recover attorney fees (which can add up to a lot).

The 1991 amendments, however, divided up this into two different statutes.  One statute (42 U.S.C. 2000e-2(m) states (essentially) that if the employer had an illegal motive but would made the same decision nonetheless, the employer is nevertheless liable to the employee (the "liablity" provision).  The other statute (2000e-5(g)(2)(B)) limits the relief the employee can obtain in such a situation (the "remedy" provision).

Just a year before the Title VII amendments, Congress enacted the ADA.  Instead of establishing new procedures within the ADA itself, Congress simply invoked by reference the Title VII procedures (several statutes were invoked but the one we are currently concerned with is section 2000e-5).  This is why employees must file charges of discrimination with the EEOC in ADA claims.  The ADA does not, however, invoke 2000e-2, which is, to repeat, where Congress, a year later, inserted a provision making employers liable (but with limited relief) if race, sex, religion or national origin actually motivated the decision even if the decision would have been the same without that illegal motive.

In the Seventh Circuit ADA claim, the jury found that the employer (Rockwell) terminated the employee because of her perceived disability.  The jury also found, however, that Rockwell would have terminated the employee even if it did not believe she had a disability.  The district court granted the employee injunctive relief (requiring Rockwell to put a copy of the judgment in the employee's personnel file) and her attorney fees (which the court reduced from $153,290.54 to $30,658.11, because of the jury's finding).

The Seventh Circuit decision wiped out even this "limited" relief by holding that because Congress did not expressly invoke the mixed motives liability provision (2000e-2) in the ADA, its invocation of the mixed motives remedy provision (2000e-5) was not enough after the Supreme Court's decision in Gross.

I don't ordinarily discuss here questions of statutory interpretation.  This decision is important because it further demonstrates the impact of the Supreme Court's decision in Gross.  It makes trying or briefing an ADA claim simpler.  Of course, it doesn't mean employers should be less cautious or more sloppy in making decisions, especially now that the ADA has been amended to vastly increase the number of folks who have "protected" disabilities.  It is far better to convince a jury (or judge) that the decision was completely free from bias. 

What does Gross Really Mean for Employers?

Gross is, if you don't know, today's U.S. Supreme Court decision which has been heralded with the following sensational (at least in this context) headlines:

Business Gets Stronger Hand in Age Cases (Wall Street Journal)

Supreme Court makes age bias suits harder to win (L.A. Times)

Worker Age-Bias Suits Limited by U.S. Supreme Court (Bloomberg)

Not surprisingly, one senator (Leahy) has already called for its reversal, accusing the Supreme Court of "overreaching" and disregarding precedent.

Employers might think from these headlines that the Supreme Court outright abolished age discrimination altogether.

But focusing, as I try to do, on how the decision actually impacts employers, I would be hard-pressed to say that it changes much of anything.

For quite a while (as in decades) the Supreme Court has recognized, in all sorts of discrimination cases (including NLRA cases a nd constitutional retaliation claims) that employers don't always act with singular motives and that multiple motives usually go into any one employment decision. Sometimes one of these motives is illegal.

For example, an employee who misses a lot of work may justifiably be fired, but suppose part of the reason is that the employee is pregnant. Either motive, alone, might have led to the firing. A legitimate motive is mixed into an illegitimate one. So how does this get sorted out? Badly, in most cases.

Twenty years ago, a divided Supreme Court decided a sex discrimination case against Price Waterhouse brought by a female who had not been promoted to being a partner. She argued her sex played a role and there was some evidence that some of the voting partners had a stereotyped view of how a female should look and act as a Price Waterhouse partner. The Court held the female could sue under Title VII even if she could only show her sex played some role, though not a but-for role, in the vote. It also held, however, that if Price Waterhouse showed she would not have been made a partner despite the stereotyped statements, she would lose.

Congress was OK with the idea that an employee could win a sex discrimination case with only showing a mixed motive but it didn't like the idea that the employer who was motivated by the employees sex to some degree could get off scott free. Congress amended Title VII, giving us the "motivating factor" standard and providing that an employee can partially win a mixed motive case. Congress meant well, no doubt, but the statute has badly confused judges, jurors and lawyers. While Congress amended Title VII, a similar change was not made to the ADEA.

Ostensibly, in Gross, the Supreme was being asked how Price Waterhouse applied to an ADEA claim, that is, what does it take to create a mixed motive case as opposed to a single motive case. The Court, having seen the mess Price Waterhouse created, responded by saying, "enough." We screwed up in Price Waterhouse, we wish we had never heard of a mixed motive. Saying the Price Waterhouse "mixed motive" standard was not compatible with the ADEA, the Court held that an employee claiming age discrimination must prove age was the motive for the decision, not just one of several motives. Age had to have made a difference.

Gross (actually his lawyers) wanted to be able to argue to a jury that the employer had more than one motive for firing him (and that one motive was his age) because, under the cases, that meant the jury would then be told that the employer bears the burden of proving the employee would have been fired even without the illegal motive. Employee lawyers like to press this point because it give an imprimatur to the jury's natural inclination that the employer should justify its decision rather than require the employee to prove they were discriminated against.

Lawyers, you see, love to argue over who has the "burden of persuasion" a topic that, in the real world, makes utterly no difference whatsoever. It is sort-of like the saying, "close only counts in horseshoes." In a legal case, the burden of persuasion only affects what happens when proof is missing and what happens when the evidence is equally divided. Take, for example, our situation above, where the pregnant employee is fired for missing work. The employee could prove sex motivated the decision by showing others who were not pregnant missed as much or more work and were not fired. The pregnant employee bears the burden of persuasion here - it is not up to the employer to prove that it treated all other employees, pregnant and non-pregnant, equally. Of course, if the evidence is there, you can bet that a smart employer's lawyer will put on this evidence of equal treatment. Frankly, I win a lot of cases because the other side fails to ask for this kind of evidence in discovery. Forget about the equally divided cases, that is akin to counting angels on the head of a pin.

To bring this to a resolution, today's decision holds the mixed motives analysis doesn't apply to age discrimination claims. Effectively, that means Price Waterhouse is dead. Good riddance.

Don't celebrate just yet. It may make an age case harder to prove in a legal sense but a strong age case - or even a not so strong age case - will still let a jury find discrimination. Even under Gross decision, an employee simply needs to show that had the employee been substantially younger (5 to 10 years, depending on the court you are in) the decision would have been different. That can be shown in any number of ways, as I've discussed here for some time.

Don't think this means you can start being stupid. Proper documentation, treatment of employees, and investigations are every bit as important today as they were yesterday.

Unfortunately, it probably means Congress will now amend the ADEA to incorporate the mixed motive language from Title VII. While could slap together something, amending the ADEA the right way won't be easy. Age discrimination is unlike sex or race discrimination in many ways. Pensions and other benefits turn on age, in part. It took several years for the impact of the ADEA on those and other issues to be sorted out (the Supreme Court, only last year, had to sort out how the ADEA affected certain disability retirement issues).

Practically, Title VII is meant to combat outright racial and sexual bias. Age discrimination, however, is really more about combatting the stereotype that older workers are more costly and less productive. Some, in the younger generation, may have an outright bias against older folks but by and large most recognize that we will all be older someday. Age matters, in some situations, and hopefully someone in Congress will realize this.